The article is interesting in part because he eschews the argument made by Stanley Kurtz that data from Europe demonstrates a correlation between gay marriage and a decline in marriage and other social ills. From this (flawed) correlation data, Kurtz argues that gay marriage must have caused the problems. Says Blankenhorn: "Neither Kurtz nor anyone else can scientifically prove that allowing gay marriage causes the institution of marriage to get weaker." He suggests "giving up the search for causation." Maggie Gallagher, too, has avoided relying on Kurtz. Robert George of Princeton has seemed agnostic about Kurtz's claims. Now Blankenhorn rejects the Kurtz thesis. It is becoming difficult to find even opponents of same-sex marriage who think Kurtz is right.

Blankenhorn has a new twist on some survey data, however, that he believes does undermine the "conservative case" for gay marriage. Blankenhorn writes that a 2002 survey of attitudes about families and marriage from 35 countries around the world shows that the presence of gay marriage or civil unions in a country correlates strongly with a series of beliefs that he describes as, roughly speaking, anti-marriage. For example, people in countries with gay marriage or civil unions are more likely to agree with statements like, "One parent can bring up a child as well as two parents together," or "It is allright for a couple to live together without intending to get married." Conversely, people in countries with no recognition of gay relationships are more likely to agree with statements like, "Married people are generally happier than unmarried people," or "The main purpose of marriage these days is to have children." (To keep this post relatively short, I won't quibble here with the numbers in the surveys, the methodology, or the age of the data. What would happen to the correlation, for example, if we added a country like South Africa, which recently recognized SSM, to the mix?)

All this seems to show is that the more socially conservative a country is the more likely it is to oppose gay marriage and vice-versa. That's no surprise. It's no accident, for example, that the first states to recognize gay relationships in some form have been blue states, and that the states where the strongest majorities have banned gay marriage have been deep red states.

So what does this correlation mean for the debate? To Blankenhorn, it suggests that support for gay marriage is one of a "cluster" of "mutually reinforcing" beliefs about family life that are anti-marriage. To make this argument he comes up with a revealing analogy:

Find some teenagers who smoke, and you can confidently predict that they are more likely to drink than their nonsmoking peers. Why? Because teen smoking and drinking tend to hang together. . . .

Because these behaviors correlate and tend to reinforce one another, it is virtually impossible for the researcher to pull out any one from the cluster and determine that it alone is causing or is likely to cause some personal or (even harder to measure) social result. All that can be said for sure is that these things go together. To the degree possible, parents hope that their children can avoid all of them, the entire syndrome--drinking, smoking, skipping school, missing sleep, and making friends with other children who get into trouble--in part because each of them increases exposure to the others.

It's the same with marriage. Certain trends in values and attitudes tend to cluster with each other and with certain trends in behavior. . . . They are mutually reinforcing. [emphasis added]

Accept one of the beliefs (e.g., that there's no need to get married if you want to raise kids) and you are likely to accept them all (including support for SSM). Reognize SSM and you are likely to have a populace with anti-marriage views. But this doesn't work well as an argument against SSM.

First, while he convincingly rejects Kurtz's correlation-as-causation argument, Blankenhorn himself slips between correlation and causation. Unless supporting SSM or recognizing SSM in a country somehow causes people to accept anti-marriage views, or at least causes them to be more likely to hold such views, then there is no "mutually reinforcing" "cluster" of beliefs to be worried about. There is only a coincidence of beliefs, which may or may not be causally related. Support for SSM among individuals or recognizing SSM in a country is no more tied to general anti-marriage views than is opposition to the death penalty (which I'd bet is another correlation we would find) or any number of other beliefs that might be correlated in traditionalist and non-traditionalist countries. Blankenhorn picks certain survey results out of all the questions asked and asserts, effectively, "these must go together, they must be part of the same world-view."

To say that these beliefs are "mutually reinforing," as Blankenhorn does, is just another way of saying that one bears a causal relationship to the other. But as Blankenhorn correctly notes, "Correlation does not imply causation. The relation between two correlated phenomena may be causal, or it may be random, or it may reflect some deeper cause producing both."

Second, as Blankenhorn's analogy to teen smoking and drinking reveals, his conclusion that SSM is a bad thing is embedded in his argument. Yes, teens who smoke are more likely to drink and both produce individual and social ills. But we know they produce social ills not because these activities are correlated, but because there is a demonstrated and distinctive harm that each produces. Smoking causes cancer. Drinking causes drunk driving. Similarly, having children out-of-wedlock demonstrably increases risks to them; SSM may or may not produce social ills, but this conclusion is not reached by noting a correlation with practices that do cause harm.

Think of it this way: Suppose I could show that people who attend church regularly are more apt to hold very traditionalist views about the role of women (e.g., that a woman should be a homemaker, not a professional, and should defer to her husband's authority) or are more likely to be racist (e.g., they oppose interracial dating or marriage), and in fact, suppose the survey data further showed that the more often people attend church the more likely they are to harbor racist and sexist beliefs. Would I have shown that attending church is a bad thing?

Bringing this back to marriage, I'd bet that there was a correlation in 1900 between support for ending the marital rape exemption, support for equalizing women's role within marriage, granting women the right to vote, and support for ending marriage altogether. This correlation, if it existed, would tell us nothing about whether ending the marital rape exemption or promoting women's equality or enfranchising women were good ideas.

I suppose Blankenhorn could respond: "Kids shouldn't smoke because this is more likely to cause them to drink, even if smoking itself weren't harmful. Similarly, we shouldn't have SSM because support for SSM is more likely to cause people to believe things that are demonstrably harmful to marriage, even if SSM by itself is not." But this response would itself depend on a conclusion that there is some causal relationship between support for SSM and support for anti-marriage positions, and yet we cannot know this from a correlation.

A person who's generally anti-marriage could believe, quite mistakenly, that SSM too is anti-marriage. Instead of deinstitutionalizing marriage, SSM could be a small part of reinstitutionalizing it, despite the marriage opponent's most fervent hopes. Nothing in a series of correlations in survey data answers that question either way.

In another part of his Weekly Standard article, Blankenhorn quotes from a number of academic supporters of SSM who do indeed see it as a way of deinstitutionalizing marriage. He argues that this also shows that SSM and deinstitutionalizing marriage "are linked." I'll address that argument in a coming post.

UPDATE: Stanley Kurtz agrees with me that, even though Blankenhorn eschews causation from the correlations he presents, in fact he slips into causal arguments. This isn't a problem for Kurtz, of course, but on Blankenhorn's own logic it's a big problem for his own argument.

Well, it strikes me that you're right. The kids who smoke probably have other characteristics that correlate: wearing jeans with holes and listening to music that I don't like, ferinstance. I can't prove that there's no causal, reinforcing relationship here. But I'd like proof.

I vicerally dislike SSM. But I don't think that there have been any arguments against it that make sense, given the context of our culture and technology. This is just another example. So I don't see how one opposes it on rational grounds.

Another problem with Blankenship's argument (as you've explained it) is that, even if there is a causal relationship between anti-SSM attitudes and pro-marriage attitudes, it is far from clear that banning SSM has any impact on pro-marriage attitudes.

I think you should reconsider the implausibility of the "mutual reinforcement" thesis. I have never met someone who favors SSM but who is morally opposed to divorce. I'm sure there are such people (David Brooks may fall into this category), but in my experience, these attitudes DO tend to go together.

Moreover, I would be very surprised if rising levels of SSM support are not correlated with rising disenchantment with the institution of marriage. Do you actually believe that Generations X and Y are more supportive of SSM for reasons that have nothing to do with their shifting attitudes and practices about marriage?

Of course, one could rationally believe that. And nothing I've offered above is scientific. However, I cannot help but note the opportunistic character of your skepticism here. SSM advocates generally insist that they are not trying to redefine marriage. This is a convenient, though unhelpful fiction. They are trying to redefine it, and probably should prevail. But one of the reasons they will prevail is the decline of "faith" in institutions that have historically opposed SSM. I see no shame in this.

Moreover, although I agree that his example is loaded, your examples end up shooting yourself in the foot. I suspect most readers of this blog would welcome the suggestion that pervasive and entrenched superstitious beliefs are likely correlated with anti-social behavior. (BTW, I don't know many SSM proponents who are deeply and unapolegetically religious, either). In your examples, the thesis that deeper structures express themselves as marital rape, anti-franchise laws, or other inequalities is...well, extremely plausible!

One of the more tiresome dimensions of the SSM debate is the suggestion by proponents that only the presence of a visible, marriage-obliterating cloud could possibly prove that SSM could have ANY impact on broader notions of the family within social institutions. I think SSM is likely a cousin of no-fault divorce and abortion in this respect; its existence attests the reality of tectonic shifts in our society, and legitimizing it legitimates and reinforces those shifts.

A conservative blogger ( a pastor, I think!) commented several years ago that the war to save marriage had been lost long ago, and therefore one ought not to blame SSM for destroying it. I think this is about right. I just think it misguided to believe that these various changes really have nothing in common with another, nor do they create reinforcing pathways.

"Neither Kurtz nor anyone else can scientifically prove that allowing gay marriage causes the institution of marriage to get weaker."

Is this not simply to say the same thing the Scholars who were the signatories of this letter say…(when they state)

In light of the intense debate elsewhere about the pros and cons of legalising gay marriage it must be observed that there is as yet no definitive scientific evidence to suggest the long campaign for the legalisation of same-sex marriage contributed to these harmful trends. However, there are good reasons to believe the decline in Dutch marriage may be connected to the successful public campaign for the opening of marriage to same-sex couples in The Netherlands.

“He suggests "giving up the search for causation." Maggie Gallagher, too, has avoided relying on Kurtz. Robert George of Princeton has seemed agnostic about Kurtz's claims. Now Blankenhorn rejects the Kurtz thesis. It is becoming difficult to find even opponents of same-sex marriage who think Kurtz is right.”

I think this is unfair. Just because you have given up the (very) difficult job of “proving” causation, does not mean you believe its not true- or a valid argument. It simply says that proving causation in the social sciences takes years of debate. You need to run the experiment first, gather all the evidence, and then argue about it for years afterwards. (Think of the debate of the harm caused to children by divorce)

It seems to me that to give up the “search for causation" in Kurtz argument, is to flirt with the idea of giving up on the “search for causation" in the entire field of social science.

Adam: "{One of the more tiresome dimensions of the SSM debate is the suggestion by proponents that only the presence of a visible, marriage-obliterating cloud could possibly prove that SSM could have ANY impact on broader notions of the family within social institutions."

This is true. However, in all fairness, opponents of SSM *always* assume that it will have a damper effect on marriage, when, just as logically, one can argue that SSM may actually be beneficial to marriage.

Hoosier: Thank you for your honesty. It is rare to see that! I totally disagree with you, as I'm in favor of SSM, but you do not attempt to make up silly arguments to justify your position. I much more respect a person who says they don't like gays getting married just because it cuts against what they've been taught, or how they feel, or whatever, than trying to make specious arguments.

This cluster of mutually-reinforcing beliefs argument has to be distinguished from a coincidence of common believes and can be tested in various ways. You could do some sort of time series measure to see if the introduction of SSM alters other beliefs. Or you might use a sort of factor analysis or cluster analysis to try to piece out the role of SSM. An instrumental variables analysis might identify an unmeasured common feature that explains the results. But just asserting that they are mutually reinforcing, simply because they are found together, isn't much evidence.

Dale: What pattern of evidence could be obtained that would clearly convince you that alternatives to traditional marriage (SSM or registered partnerships or civil unions) were “bad” (by your lights)?

The theory that has been propounded by Kurtz and others (including, ironically, Blankenhorn) can be described as follows:

1. Liberal values concerning relationships and childrearing predate alternative proposals to traditional marriage (such as SSM);
2. These values result in changes in social norms, principally acceptance of alternative arrangements to traditional marriage (registered partnerships, civil unions);
3. Such arrangements and values are associated with fewer straights getting married and more children being reared out of wedlock and by single parents.

Is the theory implausible? Is it implausible that as social norms concerning relationships become more liberal, people entertain different types of arrangements (having children out of wedlock, single parenting, not getting married) and, AT THE AGGREGATE, children are harmed?

The important point is that the distal variable that’s driving the process is liberal (or libertarian) values about relationships, and marriage in particular. Proposals for alternative arrangements to marriage are just one symptom of liberal norms about relationships (other symptoms could include, for example, easy divorce).

I would like to see some studies on how the "traditional views about marriage" in certain areas or among certain groups correlate -- or do not correlate -- with actual *behavior* regarding marriage. For example, I believe studies have shown that the divorce rate in Alabama is higher than in Massachusetts (see also, anecdotally, some leading Republicans). So maybe some people who articulate certain values don't actually live up to them.

But maybe it's more than that. For example, it strikes me as quite logical that believing that it's OK to live together without a prior commitment that you will get married -- and actually living together with someone who might or might not become your spouse in the future -- actually makes resulting marriages stronger. Because you get a chance to figure out that you really will be compatible living together.

In the discussion of whether domestic partnerships, civil unions, and other forms of marriage-lite have harmed the institution of marriage, let's all keep in mind how and why those alternate forms came about.

"Accept one of the beliefs (e.g., that there's no need to get married if you want to raise kids) and you are likely to accept them all (including support for SSM)."
Look, crooked timber and all that, but does this make sense? If you don't think it's important to be married in order to raise kids, then wouldn't gay marriage be less important to you? Conversely, if you're a person who thinks it is important that kids be raised by a married couple (and particularly if you're a gay person who thinks that way), wouldn't you be inclined to support gay marriage?

A friendly amendment concerning the time series suggestion: If liberal values concerning relationships (of which SSM is just one symptom) are driving negative outcomes (e.g., increases in children being reared out of wedlock or by single parents), the starting point for such analyses should be *before* implementation of arrangments to traditional marriage.

You would not expect a shift in negative outcomes at the moment SSM is implemented. Such outcomes should occur before SSM implementation, although SSM (and other proposals to liberalize relationship law) could exacerbate the effect.

All this seems to show is that the more socially conservative a country is the more likely it is to oppose gay marriage and vice-versa. That's no surprise. It's no accident, for example, that the first states to recognize gay relationships in some form have been blue states, and that the states where the strongest majorities have banned gay marriage have been deep red states.

So what does this correlation mean for the debate? To Blankenhorn, it suggests that support for gay marriage is one of a "cluster" of "mutually reinforcing" beliefs about family life that are anti-marriage.

Perhaps he ought to check the divorce rate in a blue state like Massachusetts as compared to the Bible belt states before going on about the latter's "cluster" of "mutually reinforcing beliefs" in support of marriage.

NRWO, even if your 3-step theory is correct, first of all, the decline you describe is not stopped by stopping SSM, since SSM is, and will always be, a very small percentage of the non-traditional arrangements; and second, why the people that oppose SSM do not devote 10% of the energy they put on SSM into for instance, opposing easy divorce, or heterosexual cohabitation,which are far more detrimental to traditional society than SSM.

In summary, though your theory is plausible, the fact that people react with that level of energy only to SSM (campaigning for constitutional amendments) and not to, for instance, no-fault divorce (beyond decrying it on Sunday lunch with the family), the driver of that energy is probably mere gut feeling, the icky factor, which is afterwards rationalized somehow.

I think the fault line lies, as it often does, between those enamored of the powers of human reason and those skeptical of the reach and accuracy of those same powers. "Rationalists" tend to believe that the human power of reason is the supreme value in determining social or political or economic order, and through this faith in reason they are more willing to leap into the unknown. "Skeptics," (who are sometimes, but not always, "conservative" as well) on the other hand, tend to view human reason as having limited faculties, and they do not have the same level of faith that human reason is able to comprehend and flawlessly predict outcomes. This faultline is greatest in the socio-economic context, for it is a complex and dynamic set of systems of great consequence. Acting to alter such systems may have unforeseen consequences, and some of those unforeseen consequences may be quite negative. Rationalists nevertheless tend to believe that their predictions will come true, and that there is nothing to worry about. Skeptics, on the other hand, tend to focus on the unforeseeable consequences, and of the terrible magnitude of those consequences. Rationalists will cite to their victories, such as the end of slavery or the civil rights movement, while skeptics will cite to rationalists' failures, such as the French Terror, the Holocaust, and the Great Leap Forward.

My extended point is that opponents of SSM are simply mistaken - and silly - in their attempts to rationalize their opposition to SSM on such grounds; tactically speaking, it is rather stupid to take on the burdens of an affirmative defense when the other side hasn't made its case. The best tool for skeptics instead is to demand that the proponents of SSM - proponents of a new social order that has never existed in the whole history of humanity - prove, beyond a reasonable doubt, that SSM will have a beneficial effect on society as a whole. It is simply not enough for SSM proponents to speak of the "right" of homosexuals to enjoy the same marital rights as heterosexuals (self-actualization is not a policy proof) or to say that opposition to SSM can only be religiously-motivated (and therefore suspect), or to note that heterosexual marriage is no utopia and that the practice is full of hypocrisy. No, the proponents must go beyond attacking traditionalists and homophobes, and beyond preaching their rights and loves from soapboxes - no, they must prove that SSM is good for society. To date, proponents have not made their prima facie case. Unless they change their tactics, unless they begin to prove that SSM will be a social good, they will fail. Perhaps a century of positive experience from various countries that have enacted SSM experiments will provide the empirical evidence?

I would be stunned if factor analysis failed to show that attitudes concerning different aspects of relationships (SSM, rearing children out of wedlock, single parenting, civil unions, easy divorce) did not load strongly on the same factor.

Concerning SSM: It just doesn’t seem plausible that relative to people who don’t want SSM, people who want SSM wouldn’t also be more liberal on other aspects of relationships (see parenthetical above). Such a finding would provide one type of support for the “mutually reinforcing” hypothesis (i.e., liberal views about different aspects of relationships, including SSM, tend to hang together).

Dale Carpenter in another post on Volokh writes about an article Blankenhorn wrote forwarding his recent book. In it he lays down a bed of inculcation, almost to rhythm, in the effort to downplay what is very compelling evidence against his own pet arguments [...]

This would further point to an independent cause which caused both changed attitudes about heterosexual marriage and gay marriage. Is it possible that an acknowledgement and acceptance of greater self-determination for the individual in all walks of life is the cause of both phenomena?

MADD propaganda! Beer doesn't cause drunk driving, people cause drunk driving! You can have my beer when you pry it from my cold, sober hands!

And the point I'm making is that Dale used the "drunk driving" argument to point to the prejudice inherent in the article ("...his conclusion that SSM is a bad thing is embedded in his argument.." It is not apparent that merely because he happens to believe that SSM is bad (researcher bias) the data is flawed. Further, researcher bias may explain why the researcher draws his conclusions (since he's simply rationalizing his conclusions, rather than letting his conclusions derive solely from the data), but the same weak argument could be raised against Dale - his bias that SSM is 'not bad' is embedded in his counter argument.

(Disclaimer: I don't care about the genetic or sociology issues at play, no matter which direction they cut. However, I suspect that ultimately neither will weigh against SSM).

There is a correlation between support of SSM and more liberal attitudes toward living together, divorce, etc.

But the correlation between opposition to SSM and more conservative attitudes about same is far weaker. There are plenty of people who oppose SSM and lead quite non-"traditional" private lives: serial divorcers, unmarried couples, adulterous Senators, etc.

The thing with which opposition to SSM most closely correlates is oppostion to ANY gay rights.

BobNSF: I wonder what would happen if religion taught that no matter your orientation you should live in monogamous relationships? It just seems that there are two positions society in general takes. Heterosexuals SHOULD be married (though that's been deemphasized a bit) and homosexuals should keep quiet. Under that climate is it any wonder that so many young gay men are acting on their urges?

After all, society seems to give them no incentive whatsoever to form monogamous relationships. Its just so frustrating because people who oppose gay marriage often won't say what they DO support for gay couples and they won't talk about monogamy for them, instead they focus on promiscuity.

One other thing about correlations. I'm not going to do the study, but I'm about 95% sure that the liberal, or anti-marriage attitudes, of nations are highly correlated with greater wealth. Same with support for SSM. Certainly, the nations that have adopted SSM are well above the median income.

From this can we conclude that liberal, anti-marriage, attitudes and support for SSM increase economic growth? I kind of doubt it. It is capitalism and economic growth that produce the individualism and wealth that produce these liberal attitudes.

> "The thing with which opposition to SSM most closely correlates is oppostion to ANY gay rights."

It is true that many portray marriage as a referendum on homosexuality, but that is mostly the people drumming up support to neuter marriage by playing an emotion card.

I'd say most are very liberal when it comes to gay rights but see marriage as a different issue. They support some way of giving benefits and rights to same-sex couples, (in fact close to 50% or more) through CU's, DP's (or even better Reciprocal Beneficiaries) but only half of those supporters would actually remove equal gender representation from marriage.

The divisive nature of the issue seems to be that some don't see marriage as anything more than a sort of government hallmark basket of regulation, recognition and goodies to the human condition we call romance, and others see marriage as more than that.

I'm one of those people that sees great value in equal gender representation in marriage, and the value in encouraging a marriage ideal that promotes responsible procreation.

> "SSM will benefit the participants and harm nobody. That is a net social benefit."

There are reasons "same-sex marriage" is a good phrase to describe the prescribed alteration in family policy, and some reasons it is not.

One reason "same-sex" or even "gay" is a bad prefix to describe the chane is that it only describes who is getting the benefits, and does not describe the change itself. In fact, it sets its blinders so narrowly at the targeted group that it can misdirect people away from seeing what change is happening and how it will impact society.

One could use the phrase "gender neutral" marriage which describes a much broader swath of the population, and accurately describes the new definition of marriage. That would certainly aid in seeing the issue more circumspectly. Yet that is not the change, it is the product.

But the change itself is best described (to me) as "neutered" as in removed of gender reference all together. Which gender is removed? Well, both from the institution although only one gender is removed at a time for some couples.

Removing the notion of equal gender representation from marriage does the institution harm, it removes it from being an institution of gender integration to being one of sexual-orientation integration. The role that gender integration plays in the formation of families, and in our own attachment to our heritage, is consequently removed. Or even worse than removed and ignored, integration is painted as the moral equivalent of white supremacy. And so integration becomes the new segregation. Such an irony has great implications on many aspects of our progressive view of humanity.

BobNSF: absolutely. I guess my post was more in response to the liberal tendencies of gay supporters. I think liberals (and libertarians of course) tend to be more pro-gay because conservatives haven't yet developed a positive message of monogamy yet. Instead they're so focused on making it all about marriage and marriage being an exclusive social club that they're intent on ignoring gay relationships entirely rather than at LEAST suggesting couples live monogamously.

Certainly, the nations that have adopted SSM are well above the median income.

Most, yes, but not all. South Africa stands out as the prime counter example. Recognition of same-sex couples is also spreading through many of the urban areas of South America in the form of state (or provincial) and city registration of domestic partnerships.

The divorce rate in Oklahoma, a deeply red state in the bible belt, is about 75%, well above the national average.

Opponents of SSM here are nothing more than bible thumpers attempting to impose their "beliefs" on everyone else. For example: legalizing tattooing in the state was held up for years by a single state senator simply because he "didn't like tattoos" and they were "against his personal beliefs."

As for SSM being detrimental to the family. EVERY valid peer-reviewed study have shown that, in most cases, the best environment for children is to have parents who are married; the gender of those parents, however, is non-significant.

For those who argue that children of same-sex parents should not have to be subjected to anti-gay harrassment, the solution is simple...they should stop subjecting the children to harrassment.

Removing the notion of equal gender representation from marriage does the institution harm, it removes it from being an institution of gender integration to being one of sexual-orientation integration.

I'm rendered speechless (fortunately for VC readers, I'm typing) that some think it would be a good idea for me to marry a woman. On whom would you inflict the curse of a romanceless, sexless marriage, On Lawn? Do you have in mind a female relative you really dislike?

>> "Certainly, the nations that have adopted SSM are well above the median income."

> "Most, yes, but not all."

Oddly enough, that one of the most prominent yet overlooked pieces of Kurtz's compelling case. That neutering marriage is an act of treating marriage as an avenue for welfare, and happens in liberal states.

Perhaps it took someone disinterested in wresting Kurtz's work to see it, but Dan Morgan saw it pretty clearly.

To look for trends, the Scandinavian countries are always worth looking at. In the last 15 years, Sweden and Norway both have had a rapid decline in marriage. Today the majority of children are born out-of-wedlock. The welfare state enables single mothers to raise children while not living in poverty. Starting at age one, publicly funded daycare centers will take care of your kids. So in a sense, the state begins raising future generations. Again, is this something that we want in America’s future?

Why such a crucial tine in the thrust in Kurtz piece gets ignored, I'm not sure. While Kurtz portrays a many dimensional beast that is eroding away at marriage, far too many people accuse him of being too simplistic.

"Spitzer, SSM will benefit the participants and harm nobody. That is a net social benefit."

That's a wonderful conclusion, Elliott, if true, and, if true, there would be no secular reason to oppose SSM. But conclusions are not arguments and have no evidentiary value. I am simply waiting for proof beyond a reasonable doubt that SSM would have no deleterious effect on society. Until then, I remain deeply skeptical, and in my skepticism, I prefer to remain with tradition and the devils I know. After all, continuing to prohibit SSM creates no new injury on society or culture, if it creates any social or cultural injury at all, whereas I do not know how SSM would affect society.

> "On whom would you inflict the curse of a romanceless, sexless marriage, On Lawn? "

False. Equal gender representation in marriage does not mean people have to be married, or that they have to be married to form lasting relationships with others. It is no more inflicting any type of marriage on you, than raising the speed limit inflicts you to sit car instead of ride a bicycle.

> "Perhaps people ignore it because its just a continuation of a trend that started more than 10 years before domestic partnerships were legalized in Sweden?"

I'm not sure what you mean.

However, as much as neutering marriage is a continuation in the shift from familial institution to welfare institution, (or from self-governance to state governance of romance) then it is certainly reasonable to conclude we can continue to see more of the same.

Well, the line is clarifying. Spitzer thinks that change needs justification. That's a good traditional conservative position. But completely at odds with capitalism and economic growth. Would you say the same about computers? Demand proof of their social benefits before allowing their use? Capitalism is about change and the destruction of the devils one knows. Capitalism and economic growth are by far the greatest source of change in our lives, and I think that SSM is one of the changes it is bringing.

I suppose Blankenhorn could respond: "Kids shouldn't smoke because this is more likely to cause them to drink, even if smoking itself weren't harmful. Similarly, we shouldn't have SSM because support for SSM is more likely to cause people to believe things that are demonstrably harmful to marriage, even if SSM by itself is not." But this response would itself depend on a conclusion that there is some causal relationship between support for SSM and support for anti-marriage positions, and yet we cannot know this from a correlation.

You can go further than that. If supporting SSM constitutes in any way support for measures that damage marriage, than SSM would damage marriage. You could label it indirect I suppose, but you would still be hypothesizing a causal relationship, with its attendant correlation, between SSM and damage to marriage as an institution. Unless you toss in a nice time-lag as a fudge, that is a measurable thing and Blankenhorn's claim can be measured, and adjudged a failure, against reality.

Ok I know I've pointed this out SEVERAL times on this blog, and I think I even pointed it out to YOU, Cornellian...

That "Red State Divorce Rate" thing that popped up on DailyKos around the 2004 election is a load of crap, people. It gets its numbers by taking the number of raw divorces per capita, and it completely ignores the fact that you have to get MARRIED to get divorced. Guess what? Massachusettes, Connecticuit, and DC have the lowest MARRIAGE RATES in the country.

Look at the number of divorces per MARRIAGE, and you'll find that the convenient pattern disappears. (It's pretty even across regions) I'm not going to look up the data again... After the fifth time or so I should have just bookmarked it.

On Lawn: you questioned why people ignore Kurtz's correlation between domestic partnerships (You used the word marriage of course, which was not accurate at the time, in 1989 they were implemented) and out of wedlock births. The reason is those rates have been on the decline since the 50s when no fault divorce was legalized, along with an increase in the divorce rate, etc. That alone indicates that any link between SSM and rise in out of wedlock births is specious at best.

"The reason is those rates have been on the rise since the 50s when no fault divorce was legalized, along with an increase in the divorce rate, etc."

And what voice of reason/ ideological camp/ discernable social group – advocated against the adoption of “no-fault” divorce? Did not this very group predict the harm that would result to the institution should it be enacted? What opposing ideological camp/ discernable social group common argument was cast as…

What do two people getting divorced have to do with your marriage?

P.S. What do two people getting divorced have to do with any individual marriage? Prove it!

Frankcross: you make a couple of interesting points about changes that are more or less beyond our control. But you are not arguing in favor of SSM - you are simply trying to change the subject. Please prove that SSM would wreck no social or cultural harm.

Yes, many (but not all) conservatives believe that people are fallible and, as such, are perhaps more hesitant to embrace change - especially fundamental changes to society and culture and economics - than those enamored of rational solutions to all of life's problems. Please do not confuse capitalists with conservatives - the former are 19th century liberals thrilled by capitalism's destructive waves, the latter may accept capitalism as the least-evil, but many conservatives nevertheless remain uneasy with capitalism's heedless and manic destruction of good things in addition to the bad.

P.S. What do two people getting divorced have to do with any individual marriage? Prove it!

At an individual level? Nothing at all. Is it so unreasonable however to suggest that if you legalize no fault divorce more people are going to find it easier to get a divorce?

That seems a little clearer than any link between gay marriage and out of wedlock births. In fairness, I suspect a few marriages would be impacted by SSM being legalized. An example would be if former Governor McGreevy was still married to his wife and SSM was legalized, I suspect he would have left his wife at that time (even if he should have never been married to her in the first place).

Maybe instead of using a term that has multiple definitions according to the time you should use the original french words Spitzer, how about réactionnaire and conservateur. Another 19th century term that may be applicable is Luddite.

Or perhaps you should not use 19th century words for some people are very much emotionally invested with them. I fundamentally disagree with you and your position, yet I can admire the way you phrased your position with skeptic vs rationalist in your first post of this topic.

Spitzer, I understand where you're coming from but you're proving too much. You can't have a requirement that any change have its beneficial effects proved (before it is allowed) because that would shut down thousands of things in society, beyond SSM. As I suggested, if you apply that standard to SSM, you would have had to apply it to computers, or ipods, or SUVs, etc. You recognize the occasional downside of capitalism, but I'm not seeing you wanting to do away with it, which is what your suggestion to presume.

Spitzer your rational
How can you "prove" a positive when you can't "prove" a negative? Your burden of proof is almost impossible to meet, just like its almost impossible to prove the opposite (same sex marriage leads to the decline/destruction/harm of marriage as an insitution).

Instead I would recommend you change your standard to something more like Oakeshott, a skeptic, and prudent but yet not incapable of change through inaction.

I suspect we can agree you will never get proof beyond a reasonable doubt that SSM would have no deleterious effect on society. I would certainly never claim to prove such a negative. So, you have set a standard that cannot be met. OK. I suggest we will proceed without such a finding.

False. Equal gender representation in marriage does not mean people have to be married...

If they want a family, if they want children, yes, "equal gender representation" (as you absurdly refer to it) does require that people marry.

...or that they have to be married to form lasting relationships with others...

I thought you objected to people forming sexual relationships outside of marriage.

It is no more inflicting any type of marriage on you, than raising the speed limit inflicts you to sit car instead of ride a bicycle.

Please flesh out this bicycle metaphor. From previous engagements, I thought you only allowed for one kind of "wheeled vehicle" as suitable transportation and that you did not support use of wheels on any other vehicle so as not to confuse the uh... purpose of wheels. (something like that)

Correlation may not prove causation, but it does require some explanation as to why not. Simply repeating the mantra is not sufficient.

I have no idea if SSM will ruin the institution of heterosexual marriage. However, most changes affect the margins first, and perhaps only the margins. So strong het marriage will probably not be affected. Less strong ones which could use some social backup may be affected.

It's been at least a decade since people who were anti-marriage glommed onto SSM as a tool for the destruction of marriage. SSM might not fulfill their wishes, but it's probably worth considering they may be on to something.

What, exactly, is gay marriage? Andrew Sullivan referred to its not looking like its het counterpart because of "the complicated lives of gay men". Is this like the monogamous gay relationship which, upon inspection, turns out to mean only one goes cruising? What if the only difference between two gays living together and doing their own thing is the piece of paper?
Will we need a new definition of "marriage" to cover what has been, until now, considered the usual thing?

Kendall: After all, continuing to prohibit SSM creates no new injury on society or culture, if it creates any social or cultural injury at all, whereas I do not know how SSM would affect society."

But it does create a new injury. Gay people who commit to each other and lead exemplary monogamous lives are penalized in that they are deprived of many of the rights married couples enjoy, such as the right to not incriminate a spouse, the various tax incentives, immigration rights, and so on.

In addition, the children of the gay couples are deprived of the right to have married parents, and the security that it represents. Currently, if one partner dies, the other may not get custody of the child, unlike married couples. That directly harms the child. Marriage, as conservative argue it, it essential for proper child rearing. Well, if that's true, then don't the children of gay parents benefit from married parents, and are harmed when the parents are not?

Again, all opponents of SSM *assume* that all effects will be negative. yet you can just as easily argue that allowing gay people to marry might actually spark a renewed interest in marriage by heteros. Would that be so bad?

It's been at least a decade since people who were anti-marriage glommed onto SSM as a tool for the destruction of marriage. SSM might not fulfill their wishes, but it's probably worth considering they may be on to something.

Who are these anti-marriage people who have glommed onto SSM as an issue?

The legal endorsement of gay marriage occurs where the belief prevails that marriage itself should be redefined as a private personal relationship.

As opposed to what happens in the rest of the world where marriage is a uh... uh... well, ummmm.

And this, his conclusion:

By itself, the "conservative case" for gay marriage might be attractive. It would be gratifying to extend the benefits of marriage to same-sex couples--if gay marriage and marriage renewal somehow fit together. But they do not. As individuals and as a society, we can strive to maintain and strengthen marriage as a primary social institution and society's best welfare plan for children (some would say for men and women too). Or we can strive to implement same-sex marriage. But unless we are prepared to tear down with one hand what we are building up with the other, we cannot do both.

I wonder what Blankenhorn thinks about the current proposal in Sweden to disestablish alternatives to marriage and require couples to either convert their relationships to marriage (opposite- or same-sex) or become unrelated, single people. Can he twist that into some sort of "erosion" of marriage?

Aubrey: "Correlation may not prove causation, but it does require some explanation as to why not."

So in other words, we are required to explain the obvious fact that there is no correlation? That's quite weird, and the law of stats doesn't require it.

"I have no idea if SSM will ruin the institution of heterosexual marriage. However, most changes affect the margins first, and perhaps only the margins. So strong het marriage will probably not be affected. Less strong ones which could use some social backup may be affected."

Well, either you DO have an idea or you don't. But please explain how a 'less strong' marriage may be affected. What is your definition of 'less strong."? That the couple doesn't love each other as much as others? That they are going through very stressful times, perhaps a money shortage? That one is cheating on the other?

Then, when you have defined that, you have to give at least a probable scenario as to how gay marriage would 'affect' the less strong marriage of heteros. How exactly? So if their marriage isn't very strong because of the money problem, the husband says to the wife, listen, that gay couple down the street? They just got married. I'm disgusted by that. So I'm going to ask for a divorce. That will solve my money problems, and I can get out of this marriage finally.

Or maybe it's this: the couple has been trying for years to have a child, but they can't. No fertility doctor can help. It has put a strain on their marriage. Then the gay couple down the street gets married. The wife shouts, I can't take this anymore! Gay people can get married, but we can't have children! It's unfair, and the only way to right this is to get a divorce!

or maybe this: The hetero marriage is going along fine. Then a gay couple move in next door. They are friendly. They have dinners together. The gay couple helps with decorating hints, and the hetero couple borrows suger once in a while. Things are fine. Then, the gay couple decide to get married. Now the hetero husband is thinking, well, if those nice gays can get married, maybe I can cheat on my wife with one of those guys? He does, he gets caught, end of marriage.

IF those are not the scenario, the please give me one you think might actually 'affect' the less strong marriages. If YOUR marriage isn't one of the less strong ones, then please tell me how you would end your marriage once gays get married.

« For example, people in countries with gay marriage or civil unions are more likely to agree with statements like, "One parent can bring up a child as well as two parents together," »

Is there not overwhelming evidence refuting this one parent is as good as two business? Agreeing with that seems ignorant to me, unless a person is trying to validate their situation.

Indeed, this would be a rather odd example. I see myself much like a very liberal and libertarian person when it comes to family and marriage, yet, there is no doubt in my mind two (or more!) loving parents are better than a single loving one. The contrary would defy logic.

But I would prefer to see one child being raised in a caring lone-parent household than a family affected by one (or more) violent, abusive and unnecessarily rough parent(s). Maybe that's what Dale Carpenter's example was going to.

why people ignore Kurtz's correlation between domestic partnerships (You used the word marriage of course, which was not accurate at the time, in 1989 they were implemented) and out of wedlock births. The reason is those rates have been on the decline since the 50s when no fault divorce was legalized, along with an increase in the divorce rate, etc. That alone indicates that any link between SSM and rise in out of wedlock births is specious at best.

Holland went through most of the structural changes that occured in Scandinavian countries and yet its marital trends resisted the declines seen in those other countries. What held back the decline of marriage in Holland for 2-3 decades?

It was declining but at a much slower pace than Sweden, Norway, and Denmark. This was noticed before SSM became a big issue. Holland was different. It had a stronger marriage culture.

But that changed when the SSM campaign built up steam and eventually succeeded in Holland. Coinciding with the success in convincing people that marriage was not essentially for integration of the sexes combined with responsible procreation, marriage trends changed drastically.

The general direction was the same, sure, but the decline became accelerated. The cultural resistance gave out.

Kurtz has pointed to Holland as an example of a society where social policy and governmental structures had changed to accomodate diverse family forms. That did not set off the increased decline in marital trends there. The Dutch cultural resistance stood against the tide. It does appear plausible that the linchpin was removed -- the preference for the core of marriage was dropped when SSM was merged with marital status.

Kurtz does describe the cultural factors that converged in other countries in Scandinavia. He provides substantial context as well as sound analysis. There is no point trying to disprove his arguments by misrepresenting what he has said. Better, try to imagine the SSM campaign without the cultural resistance that so many pro-SSM advocates rale against and seek to change.

The SSM campaign entails a very different view of human sexuality and of the government's role in protecting social institutions. Basically, the SSM advocates tend not to value social institutions as normalizing mechanisms.

Rather, they seek to pry apart the social institution of marriage from the legal shadow cast by that institution.

They emphasize something they call "civil marriage" which, inlike any social institution, is entirely the creature of the government. And the SSM campaign invites the government to regualte romance. At bottom, the campaign is about deinstitutionalizing marriage and treating it as a merely protective status rather than a preferential status. They emphasize governmentn ownership rather than government recognition. The emphasize private contractual concerns over social norms.

Rottles: Holland went through most of the structural changes that occured in Scandinavian countries and yet its marital trends resisted the declines seen in those other countries. What held back the decline of marriage in Holland for 2-3 decades?

Rottels: Better, try to imagine the SSM campaign without the cultural resistance that so many pro-SSM advocates rale against and seek to change.

The SSM campaign entails a very different view of human sexuality and of the government's role in protecting social institutions. Basically, the SSM advocates tend not to value social institutions as normalizing mechanisms.

No, not at all. And this is a very serious misrepresentation of SSM advocates. No one I know of who advocates SSM argues for any cultural changes that your describe. In fact, we are quite happy with the current culture. What we want is to be INCLUDED in the current culture, which is that of marriage. Who said that we "tend not to value social institutions as normalizing mechanisms? What does that mean?

Please: First name one social institution. Cocktail parties? Believe me, gays are much better at that than heteros! Child rearing? Gays are doing that by the thousands. Attending church? Ditto. Backyard BBQs? See above.

Second, tell me how gays and the people who advocate for SSM demonstrate that they do NOT value whatever social institutions you describe.

"Rather, they seek to pry apart the social institution of marriage from the legal shadow cast by that institution. "

How so? We don't want to pry apart anything. We simply want the SAME legal shadows cast by marriage that you have. We haven't asked to pry apart anything. Otherwise, give examples.

This is all gobblygook that you simply made up. It sounds good, like you have studied something, and it sounds very professorial. But when you look for concrete examples, it comes up short.

I would call the last several years of claims that "We don't care about the social institution, but we want the same legal rights as everyone else" a concrete example of attempting to "pry apart the social institution from its legal shadow."

Bob. Just keep reading and watching. You'll see them. There are a few in some of the liberal churches--ordained hierarchy, I mean--and columnists. They are sometimes feminists who think marriage is an oppressive institution.

Elliot: One part of the definition of traditional marriage is the expectation of fidelity. Sullivan apparently thinks that won't be part of his view of gay marriage. So, do we take out the cleaveonlytoeachother part of the marriage ceremony for gays? Or do we leave it in, and everybody knows they're lying? Or do we take it out for everybody? Or do couples get a choice? And are we going to be allowed to point to a couple who never had the intention of fidelity and say they have a piece of paper, not a marriage?

Thanks for your gracious comments. I will act according to my upbringing and traditions, and I'm raising my children more-or-less the way I was raised. But when it comes to prescribing something for the broader society, I think that one needs to provide reasonable arguments. I have read the arguments against SSM sympathetically, and still found them unconvincing. So what's a guy to do?

(I should add that the only /really/ convincing argument against gay marriage that I've heard was on "Drawn Together": If gays are allowed to marry, pretty soon we'll have Nazis with lazers riding around the country on dinosaurs. Again. And I just can't support that kind of thing!)

Randy R. Marriage includes people doing things they wouldn't ordinarily do, including sacrificing for each other and trying, sometimes succeeding in remaining faithful. For some folks, social example is important. For the weak marriages. Take away the example, and you have less influence from society in keeping a traditional marriage together. At the margin, that may be decisive.

As to my marriage, let me tell you a quick story. Having lunch with some old friends a couple of years back. One, a judge, remarked that we were an odd demographic. All had been commissioned officers. All had been married to their first and only wives for thirty years plus. All had parents who never divorced, although some had died. We were so odd, we'd be practically an enemy of society. Which, it turns out, is sort of true. There are occasional sneers directed toward me. Thirty-five years? "leave it to beaver country, eh, heh heh". So I'm not interested in hearing any insinuations thrown in as a distraction.

What on earth are you getting at about proving no correlation? Correlation may not prove causation, but you rarely get causation without some kind of correlation. So the existence of correlation is evidence that there may be causation. It would be useful for those who insist there is none to prove it. Otherwise, the presumption is, the way to bet is, there is causation.

Randy R: There is no "new" injury from society's perspective in maintaining the status quo. To the extent that an injury to society occurs (an unproven assertion) by banning SSM, that injury has already occurred, and keeps occurring, during the pendency of the status quo. Maintaining the status quo may injure homosexuals who wish to get married, and their children and estates, and perhaps those who want homosexuality to be accepted as a perfectly normal lifestyle, equal in all respects to heterosexuality. But those are individual injuries, not injuries to society as a whole. Perhaps banning SSM also causes an injury to society as a whole, as you suggest: in that case, assuming the injuries caused by banning SSM outweigh the injuries (if any) that would be caused by adopting SSM, then proponents of SSM would have stated their case in a convincing fashion. But this needs to be proven, not asserted. Proof beyond a reasonable doubt is a high burden - ask any prosecutor - but it is necessary when the penalty for getting something wrong is unknown and potentially great.

With respect to other commenters, please understand that the burden of proof for engineering social changes is proportionate to the importance of the affected more or institution. SUVs and Ipods are not fundamental social institutions (despite what teenagers may think), whereas marriage is a social institution that has existed throughout known human history in all times and cultures, and to the best of my knowledge none of those cultures (even the ones that tolerated or accepted homosexuality) authorized SSM. So the burden on proponents of radical social change is established by the fact that we have no empirical evidence that the proposed practice would be safe for society, and moreover we must face the fact that the accumulated wisdom of all of our ancestors did not accept the practice. Therefore proponents of radical social change must overcome the presumption that the tradition of all societies - and the collective wisdom of our ancestors - is correct and good, or (alternatively) that circumstances have changed such that our ancestors' wisdom provides no useful guide anymore, and, furthermore, proponents must prove that the proposed practice would not create net social injury on a going-forward basis. Too often proponents of radical social change simply reject tradition in toto without examining in depth the logic or lessons of tradition, and are impatiently moved by their own personal desires or simple prejudice in favor of novelty to pursue the proposed change without reflecting on how the radical change would affect society as a whole. Sometimes the proponents of radical social change are right, but sometimes they are wrong, and when they are wrong, the injury can be enormous; why doesn't that counsel in favor of prudence in such matters?

The legal definition of civil marriage is not the point. The point is the general social expectations of the institution known as marriage.
Will SSM change them? Will the changes have some effect, good or bad? Yes, most likely, and bad, probably.
The reason is that gay marriage is not shaping up to be at all like straight marriage is supposed to be.
I am not particularly interested in the rights marriage confers on people as an argument. Most of the rights in question can be achieved by anybody who can read "Legal Documents for Dummies" easily available at the nearest library. Or, if they're gluttons for mistreatment, they could actually pay an attorney to do this stuff.
And when people pretend to believe in a bogus argument, it's worthwhile wondering what they're up to.

Spitzer: Can you explain how it is possible to prove a negative? It seems to me that because your standard is impossible no change in marriage law can ever occur in your views, even though we can never truly know if marriage has changed because no one seems to know the definition.

Aubrey: The legal definition of civil marriage is not the point. The point is the general social expectations of the institution known as marriage.

But you can't define those expectations if you can't define the institution. All you can do is guess, make suppositions, and wave your hands, as you do when you assert that there exists a secret cabal of conspirators who actually, literally intend to destroy the institution of marriage and use SSM as a tool to do so.

This thread demonstrates a variety of tactics the anti-marriage crowd uses to compensate for a lack of evidence supporting their claims. Some abandon the attempt to provide proof (see Spitzer, insisting that others disprove his claims). Others just make it up as they go along (see Aubrey's conspiracy theory, above). Others substitute rhetoric for proof (see On Lawn's torturous and inane use of "neuter" as the starting point for his even more torturous and inane rhetorical proof that under SSM, "integration becomes the new segregation"). And some just cling to discredited and biased research, as long as it agrees with their preconceptions (see F. Rottles).

I can respect Spitzer's approach more than the others; it at least acknowledges (if tacitly) that there is no material evidence of the harms being touted. But it's not, as others have said, consistent with our usual practice. Black students weren't required to prove that school integration would be harmless, were they? Rights are rights, and we don't (and shouldn't) demand that minorities prove they won't misuse them before granting equal access.

The legal endorsement of gay marriage occurs where the belief prevails that marriage itself should be redefined as a private personal relationship.

As opposed to what happens in the rest of the world where marriage is a uh... uh... well, ummmm.

In reality, marriage is a public social commitment, with consequences which are enforced on the rest of society and on government. "Living together" (in contrast to marriage) is a private personal relationship.

Here are some questions that I think need to be answered by both sides in this debate.

(I assert that) There were reasons why married people were given special rights by governments.

What are those reasons? Does anyone know? Are those reasons in any way exclusive to heterosexuals involved in a sexual relationship? Are the reasons exclusive to people in a two-person relationship (no, I'm not arguing slippery slope polygamy)? Are they exclusive to sexual relationships?

Depending on the answers reached to those questions, perhaps we also need a new status in addition to (or instead of) marriage, some kind of asexual plural union (which, by the way, is the only phrase in the English language which would NOT make a good name for a rock band).

Right on Colin. Some issues are very complex; others not so much. It's amazing that some could write so much in defense of what I deem an indefensible position: denying a fundamental right to a segment of our citizenry b/c they had the "misfortune" of being born "different." I suppose the more objectionable the position, the more one must talk in order to obscure the fundamental issue.

Right now we have a system in which some are denied a right that virtually every other adult has for no good reason. Speculation about the consequences is absurd, and talk of tradition is irrelevant. Why, in a nation that purports to be "free," is this minority being denied this fundamental right? Whoever can give an answer to this basic question will also presumably be able to answer why people should lose their freedom b/c they choose to smoke a relatively harmless plant.

And Randy R beat me to it, but I second the kudos to Hoosier ("I vicerally dislike SSM. But . . . I don't see how one opposes it on rational grounds"). Sure, it's hared to escape the label of a particular ideology, and many do tend to vote for one political party more than others. But this site is supposed to be above the fray, and for people to discuss issues intelligently in a way that transcends those labels. It takes courage to state what you wrote, we all ought be willing to learn from one another. While I'm indeed flexible on other issues, I simply cannot accept that all these strained arguments against SSM are nothing more than "gays are icky."

If anyone cares to answer, are any of the SSM opponents here homosexual, or close friends with any homosexuals?

Colin. The call to define marriage is transparently dishonest.
There is no authoritative marriage defintion written on stone to which all defer.
Therefore, anybody who defines marriage will be met with differing definitions and thus "proof" that nobody knows what it is.
The reason conspiracy theories have such staying power is that there really are, from time to time, conspiracies. Simply calling it a "conspiracy" doesn't make a real conspiracy go away.
The traditional aspects of marriage, such as expectations of fidelity and constancy and permanence may be negatively affected by the overt notice that they are not to be expected in SSM. Which, as I noted, Andrew Sullivan seems to think will be the case with gay marriage.
Social expectations are useful in helping people who may be in doubt stay the course they would prefer to be theirs, that they voluntarily chose. Remove some of the expectations and the useful help is weakened.
Some, as I say, think this is a good idea.

Adeez. Yeah. So? I'm not going to change a position I think rational and useful because a friend is inconvenienced by it, presuming any of my gay friends are inconvenienced by it.
They haven't bothered making the argument to me, but if they did I suppose there wouldn't be anything new.
That a friend made the argument wouldn't change my view from my reacton to reading it written by somebody I've never heard of.

"If they want a family, if they want children, yes, "equal gender representation" (as you absurdly refer to it) does require that people marry."

On Lawn’s reference to “equal gender representation” within marriage is anything but absurd. What is absurd is a movement that claims to root itself in the 16th amendments equal protection clause claiming that it is absurd.

Under current law college sports programs must reflect equal gender representation – Are we to believe that that is a compelling state interest yet providing children mothers &fathers are not?

Under Supreme Court precedent “Diversity” within college admissions serves to overcome the test for racial discrimination (the purpose for which the 16th was intended) The law claims “diversity” within a institutional environment to be legitimate purpose – but you would propose that within a family it is not/

Larry Summers is drummed out of his post at Harvard because the Sciences are seen as “under representing” females; this is considered an important social goal, yet you would claim society has no interest in representing either men or women within marriage?

Oh what a tangled web we weave when we practice to deceive. (ourselves usually)

I wish I could impart to you the utter absurdity the claims same-sex “marriage” makes of the 16th amendments equal protection clause.

On Lawns terminology stands (firm)

BobNSF (writes)

"Who are these anti-marriage people who have glommed onto SSM as an issue?"

Oh my, the list is legion. Indeed it is not the anti-marriage people who have gloomed onto SSM, but rather the same-sex “marriage” people who have glommed onto the anti-marriage academic coattails.

Its nice to have friends in high places Bob. No?

AMERICAN LAW INSTITUTE PUBLISHES PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION

Richard Aubrey: The call to define marriage is transparently dishonest.

If a call for a definition is dishonest, is the claim that gay marriage will redefine marriage also transparently dishonest?

Can anyone at all define civil marriage in the US? Can we presume 1) there is no definition of civil marriage or 2) nobody knows what it is? Can we also presume the people who say SSM will redefine marriage have no idea what the definition is, and therefore have no basis to claim a redefinition?

I understand not remembering the URL for particular information, but my recollection of the marriage and divorce rates data is different than yours. My recollection may be wrong (or I may be correctly remembering incorrect information), but if you were to come across that data again, I would appreciate hearing about it.

"Can anyone at all define civil marriage in the US? Can we presume 1) there is no definition of civil marriage or 2) nobody knows what it is? Can we also presume the people who say SSM will redefine marriage have no idea what the definition is, and therefore have no basis to claim a redefinition?"

No – we cannot presume any of that even remotely.

Those who have done so are routinely shot down by every court. They have consistently failed with this line of (ill) reasoning.

I have noticed this absurd line of reasoning in your other threads. You seem quite fond of it. It also goes to the heart of some of Collins arguments as well.

I shall dismiss with it here using (to begin) the very words of the only State Court to have ruled in your favor. (a 4-3 split decision)

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003)

"The plaintiffs argue that because nothing in that licensing law specifically prohibits marriages between persons of the same sex, we may interpret the statute to permit ‘‘qualified same sex couples’’ to obtain marriage licenses, thereby avoiding the question whether the law is constitutional. See S 319School Comm. Of Greenfield v. Greenfield Educ. Ass’n, 385 Mass. 70, 79, 431 N.E.2d 180 (1982), and cases cited. This claim lacks merit. We interpret statutes to carry out the Legislature’s intent, determined by the words of a statute interpreted according to ‘‘the ordinary and approved usage of the language.’’ Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). The everyday meaning of ‘‘marriage’’ is ‘‘[t]he legal union of a man and woman as husband and wife,’’ Black’s Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term ‘‘marriage’’ has ever had a different meaning under Massachusetts law. See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (marriage ‘‘is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife’’). This definition of marriage, as both the department and the Superior Court judge point out, derives from the common law. See Commonwealth v. Knowlton, 2 Mass. 530, 535 (1807) (Massachusetts common law derives from English common law except as otherwise altered by Massachusetts statutes and Constitution). See also Commonwealth v. Lane, 113 Mass. 458, 462–463 (1873) (‘‘when the statutes are silent, questions of the validity of marriages are to be determined by the jus gentium, the common law of nations’’); C.P. Kindregan, Jr., &M.L. Inker, Family Law and Practice § 1.2 (3d ed.2002). Far from being ambiguous, the undefined word ‘‘marriage,’’ as used in G.L. c. 207, confirms the General Court’s intent to hew to the term’s common- law and quotidian meaning concerning the genders of the marriage partners. The intended scope of G.L. c. 207 is also evident in its consanguinity provisions. See Chandler v. County Comm’rs of Nantucket County, 437 Mass. 430, 435, 772 N.E.2d 578 (2002) (statute’s various provisions may offer insight into legislative intent). Sections 1 and 2 of G.L. c. 207 prohibit marriages between a man and certain female relatives and a woman and certain male relatives, but are silent as to the consanguinity of male-male or female to female marriage applicants. See G.L. c. 207, §§ 1–2. The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry. We conclude, as did the S 320judge, that G.L. c. 207 may not be construed to permit same-sex couples to marry."

(also)

Hernandez v. Robles, 7 N.Y.3d 338 (N.Y. Court of Appeals 2006)

"All the parties to these cases now acknowledge,
implicitly or explicitly, that the Domestic Relations Law limits marriage to opposite-sex couples. Some amici, however, suggest that the statute can be read to permit same-sex marriage, thus mooting the constitutional issues. We find this suggestion untenable. Articles 2 and 3 of the Domestic Relations Law, which govern marriage, nowhere say in so many words that only people of different sexes may marry each other, but that was the universal understanding when Articles 2 and 3 were adopted in 1909, an understanding reflected in several statutes. Domestic Relations Law § 12 provides that "the parties must solemnly declare . . . that they take each other as husband and wife." Domestic Relations Law § 15 (a) requires town and city clerks to obtain specified information from "the groom" and "the bride." Domestic Relations Law § 5 prohibits certain marriages as incestuous, specifying opposite-sex combinations (brother and sister, uncle and niece, aunt and nephew), but not same-sex combinations. Domestic Relations Law § 50 says that the property of "a married woman . . . shall not be subject to her husband's control." New York's statutory law clearly limits marriage to opposite-sex couples."

"Nor is Justice Madsen’s claim that “history and tradition are not static,” coherent, at least outside the context of a George Orwell novel. Our history and tradition are real and ascertainable. This court and the United States Supreme Court have always applied these principles to inform the understanding of the privileges and immunities clause, rather than current political notions. Under our constitutional separation of powers, such issues are for the legislature and/or the people, and here the legislature has clearly spoken. This is not to suggest the constitutional right of marriage may be redefined at will by legislative process; that may be a case for a different day.”

Marriage includes people doing things they wouldn't ordinarily do, including sacrificing for each other and trying, sometimes succeeding in remaining faithful.

Richard, the context of your statement makes it appear as though you believe that this behavior does not chracterize marriages between men or women. If I'm not misinterpreting here, I'm afraid that you are mistaken. How could any couple, hetero or gay, possibly remain united for a prolonged period without such behaviors as well as a host of others (communication, compromise, and love to name just three)? Same-sex couples can (and often do) have all of that commitment without government recognition. What they can't have is the full package of legal benefits. Wanna go along with offering the benefits but calling it something else? Fine by me. It's my marriage now without any legal standing, and it will still be my marriage under alternate offical terminology. YMMV.

My best friend, whom I lived with for two years in grad school, is gay. (But not,you know, /flaming/, to paraphrase Bill Murray.) He and his partner are "registered" as "domestic partners" in their town. But they have no intention to get married, or "married"--take your pick.

I am not gay. Although the bully in my junior high used to call me a "fag." So perhaps I was gay and got cured. Because a bully wouldn't lie about something like that, would he? That could be hurtful.

I'm a Chicagoan by birth and upbringing, although I've lived in Indiana since the /good/ Bush administration. And I keep thinking about the Robert Taylor Homes fiasco in Chicago, and the great Black neighborhood that got destroyed in a fit of Great Society engineering. This reinforces my tendencies to look for the unintended consequences of social "progress." So I don't claim that SSM is risk-free.

But I'm a married man who has been faithful to his (wonderful and gorgeous) wife. And who is home to play with his children by 6pm every night. It is hard for me to see gays and lesbians harming marriage in any way that even compares to the damage done by heterosexuals who: (a) Cheat on their spouses; (b) Divorce when children are still at home; or (c) Devote themselves more to career advancement than child-rearing.

Homily over. I was raised Catholic. It doesn't wash off: You can live a secular life, and be epistemologically skeptical. But you're always what mom raised you to be. My Jewish friends say it's similar for them. Live and learn, eh?

Richard raises a point that takes me a bit off-topic, but that I've also noticed: I am an academic, and in the Humanities. So I have a rather large circle of gay friends and acquaintances, a gay dean, etc., etc.

All of them seem to support SSM. A number are in long-term monogamous relationships. And NONE of them have expressed to me any desire whatever to get married.

On a sociological level, I don't understand this. On the other hand, it does go to the point that for these folks, at least, it really is all about "the principle of the thing."

Not that this makes a difference in what the law is, or ought to be. It's simply an admission of something that I've observed, but cannot explain. Perhaps the desire to concieve children really IS deeply ingrained in our ideas about marriage, even if we are gay.

You didn't provide a definition of civil marriage. You did cite court decisions which do shoot down the petitioners, but you didn't provide a definition of civil marriage. Perhaps someone else knows the definition? Why is this so hard? Don't the thousands of years of history and tradition provide us with a simple definition of civil marriage?

n. the joining of a male and female in matrimony by a person qualified by law to perform the ceremony (a minister, priest, judge, justice of the peace or some similar official), after having obtained a valid marriage license (which requires a blood test for venereal disease in about a third of the states and a waiting period from one to five days in several). The standard age for marriage without parental consent is 18 except for Georgia and Wyoming where it is 16, Rhode Island where women can marry at 16, and Mississippi in which it is 17 for boys and 15 for girls. More than half the states allow marriages at lesser ages with parental consent, going as low as 14 for both sexes in Alabama, Texas and Utah. Marriages in which the age requirements are not met can be annulled. Fourteen states recognize so-called "common law marriages" which establish a legal marriage for people who have lived together by agreement as husband and wife for a lengthy period of time without legal formalities.

As to my marriage, let me tell you a quick story. Having lunch with some old friends a couple of years back. One, a judge, remarked that we were an odd demographic. All had been commissioned officers. All had been married to their first and only wives for thirty years plus. All had parents who never divorced, although some had died. We were so odd, we'd be practically an enemy of society. Which, it turns out, is sort of true. There are occasional sneers directed toward me. Thirty-five years? "leave it to beaver country, eh, heh heh". So I'm not interested in hearing any insinuations thrown in as a distraction.

You sound like me and my partner (minus the military service), though we're still working on year 27. Of course, there is one HUGE difference. While you sometimes sort of feel like an enemy of the state, we have received confirmation of our evil purposes from none other than the President of these United States, often.

All of them seem to support SSM. A number are in long-term monogamous relationships. And NONE of them have expressed to me any desire whatever to get married.

Well, they don't want to marry YOU, silly. ;-)

I suspect they've talked about it in private. There are many reasons they might hesitate to talk about it. 1) the decision process is private 2) history suggests not getting your hopes up 3) it's a complicated decision for long-term couples who have already built a legal structure to protect their relationships 4) etc.

Colin, Dale Carpenter has acknowledged that the SSM proponents carry the burden to make their case for their proposed reform in social policy.

Saying, in effect, "me too" and "why not?" is insufficient. Unless you are already convinced and are just fending off the basic request that you provide more substance.

Rights are rights, and we don't (and shouldn't) demand that minorities prove they won't misuse them before granting equal access.

There is no right-based claim that justifies treating nonmarriage as marriage. Marriage is both-sexed.

You might declare it is gender-neutral, or sex-neutral, and so forth. Most SSM arguments are based on the belief that marriage is NOT both-sexed and then a rights-based caim is gushed forth.

Here, for the sake of asserting your social policy preference, you make the Me-Too argument supported by the ever faithful "Why Not" argument.

Start with the basics. Why merge nonmarriage with marriage? Why do you think marraige is recognized, at all, by the society in which you live? Not this or that particular marriage, but the social institution itself.

Don't point at the incidents of marital status, that comes later. Right now, clean slate. What is the big reason or reasons that the government would create a "civil union" relationship status?

And before you jump back to the "no harm" claims, stand a bit more firmly. Explain if which type of status you think the above reason or reasons justifies: 1) tolerated 2) protective or 3) preferential. How come?

No place that has merged marriage recogniton with SSM has plainly put forth the basis for the relationship status that excludes A) integration of the sexes and B) responsible procreation and C) these two combined.

I cannot understand why you think I would, or could, do this. My contention is that Kurtz's conclusions are unsubstantiated.

Please substantiate . . . 2) the purported bias

You need only look up; Carpenter cites a number of anti-SSM advocates who have concluded that Kurtz's work is shoddy and that his conclusions do not follow from his data. I assert that the cause is bias; it could just as easily, I admit, be avarice, laziness, or insanity. But when a researcher persists on twisting data to support a conclusion that the data simply won't support, my assumption is that the researcher is biased.

Please substantiate . . . the purported discrediting.

Google will lead you to the conclusions of social scientists and statisticians who view Kurtz's work as unreliable. But why not look to your fellow travelers, as Carpenter describes above?

You might also try to restate, in your own words (so we can start with a common understanding), what you think my perconceptions are.

In a nutshell, I think your preconception is that SSM is harmful. It's an understandable gut reaction, but there is a point, I think, at which it's no longer decent to discriminate based on gut feelings. You need evidence showing a discrete harm inherent in granting equal access to homosexuals, which you do not have. I have no respectable basis for guessing why the lack of evidence doesn't trouble you.

Colin, Dale Carpenter has acknowledged that the SSM proponents carry the burden to make their case for their proposed reform in social policy.

Professor Carpenter is eloquent and thoughtful, but he does not speak for me. I disagree with his assertion. While SSM advocates may bear a practical burden, it is only because they are faced with entrenched and popular animus and prejudice. I do not believe they should bear the burden of demonstrating their right to equal access; once the state preferentially extends a benefit to one class of people, I believe it bears the moral burden of showing why it should not be extended to all. I believe the burden can easily be met with regard to plural and consanguinous marriages, but not with regard to same-sex marriages. This is not, of course, an argument, but rather a statement of my principles.

There is no right-based claim that justifies treating nonmarriage as marriage. Marriage is both-sexed.

I use the word “inane” a lot when it comes to your (and Opine in general) comments. Sometimes I worry about overusing the word, but when you trot out gems like that, nothing else seems to fit. There is, objectively and obviously, a “right-based claim” for same-sex marriage. You merely disagree with the claim. It exists regardless. Nor am I (or anyone else) impressed by your constant, tiring drone that same-sex marriage is existentially “nonmarriage.” Tell it to the jurisdictions which grant SSM. Your rhetoric is often poorly chosen, but here, at least, it’s actively interfering with your ability to address reality: the claim exists.

(On a related note, I’ve been using the term “anti-marriage” to refer to your position, as you objectively advocate for blocking marriages. I’ve decided, seeing how your rhetoric is an obstacle to the communication of your perspective, that it’s not a good idea; both sides accuse the other of being “anti-marriage,” and confusion benefits no one. So at least some good has come from your posts; you’ve inspired me to be as clear as possible by providing a compelling counterexample.)

Start with the basics. Why merge nonmarriage with marriage? Why do you think marraige is recognized, at all, by the society in which you live? Not this or that particular marriage, but the social institution itself.

Because the polity wishes it. The polity’s wishes are changing as irrational prejudices are slowly eroding in the face of a freer society.

Don't point at the incidents of marital status, that comes later. Right now, clean slate. What is the big reason or reasons that the government would create a "civil union" relationship status?

Because the polity wishes it. That’s a facile answer, of course; it omits, for example, the enormously important considerations of Constitutional protection of minorities from unjustified majority positions, which I believe morally justifies arriving at SSM via legal rather than electoral methods. But if you want a clean slate, that’s pretty clean.

And before you jump back to the "no harm" claims, stand a bit more firmly. Explain if which type of status you think the above reason or reasons justifies: 1) tolerated 2) protective or 3) preferential. How come?

I don’t understand your question. What is the difference between “tolerated” and “preferential”?

No place that has merged marriage recogniton with SSM has plainly put forth the basis for the relationship status that excludes A) integration of the sexes and B) responsible procreation and C) these two combined.

You have circled back to your rights-based claim and so you haven't started with a clean slate.

We can assume that unjust discrimination will be perfected. We can also assume that the Law will be absolutely neutral about sexual orientation. We can assume that there is no interest in prefering relationship types that combine the integration of the sexes with the contingency for responsible procreation. In fact, we can assume that such a preference is antithetical to the relationship status that will be written on the clean slate.

We can assume that the requirements of the relationship status will also define, absolutely, the purpose for the status. No exceptions.

As for the distinction between preferential, protected, and tolerated statuses, we could begin by examining what relationship types, from the full range of options, are to be outlawed or penalized. These would not be tolerated.

Then we can look at what sort of basic protections are desireable for all relationship types which are tolerated. These tolerated types may be problematic but the government will live and let live. For example, some types might be left invisible in the eyes of the law.

The new relationship type might go no further than that.

Or it might extend more protections to all relationship types that are tolerated. You are free to prioritize as you might imagine the polity would wish it. Just tie the protections to the purpose of the status.

Maybe there would be no special treatment for a subset of relationship types. All would treated the same in social policy. The government would not seek to channel behavior toward one or another kind of relationship.

But maybe some types of relationships will deserve to be given priority, again based on the purpose of the status. So only those special kinds of relationships would qualify for it.

Generally, I think that the SSM campaign is about preferring the idealized version of the homosexual relaitonship type. That is, if that type does not fit the status, then, the status must change to fit. But then there will be other kinds of relationships that will remain merey tolerated -- or even penalized.

The bottomline is that you need to start with the basis for your social policy that would create a government-controlled, government-defined, government-owned, relatonship status.

Maybe it is not really about relationships. Maybe it is just about adjudicating contractual arrangements. I dunno. It is a clean slate. State the purpose of the government's creature.

"The new relationship type might go no further than that" -- new relationship status, not type.

"We can assume that unjust discrimination will be perfected" -- elimination of unjust discrimination.

And to clarify: a preferential status is based on treating a subset as special; a protected status treats all tolerated types the same; and a tolerated status is that subset of types which excludes the types that are outlawed or penalized as unjust or harmful in some way.

Today marriage has a preferential status but some people want to remove the preference and replace it with equal treatment of all alternatives which are currenty tolerated. Some want to include SSM in the preferential status and exclude other types. So the purpose of the status is very important.

Yes, I’m referring to Kurtz’s work. Even where he merely analyzes publicly available data, I consider that “research.” You’ll forgive me if I don’t accede to your insistence on dividing his work into “research” and “analysis.” Not only is it pointless and pedantic, but I am dubious of your rhetorical constructions. You let your vocabulary drive your thinking, which is interfering with your own analyses. For instance, you complain that “equal access exists already,” because “there is no sexual orientation test.” You understand my position, though, and you understand my arguments - redefining my use of “equal access” to meet your personal definition and then complaining that the result doesn’t make sense is not a substantive response. Nor does it say much for your own thinking, given the inevitable citation to Loving.

Then we might discuss the harm done by replacing marriage with nonmarriage as per the pro-SSM campaign.

If all you’re willing to do is play rhetorical games, then no, we won’t discuss anything. Someone will make a point, and they’ll be followed by half a dozen Opine posts complaining about “redefining” marriage and “nonmarriage” and so on and so forth. It’s tiresome and, frankly, demeaning to the legitimate arguments that might be made in defense of your policy objectives. You really need to move beyond the word games.

There is no right-based claim that justifies treating nonmarriage as marriage. . . . I invite you to show the justification, if it exists. Even the Goodridge opinion failed. . . . Please cite your best example of such a grant. The one place where you feel you have seen the strongest case for treating SSM as marriage.

I haven’t cut any of your own words from that excerpt, only mine to which you are replying. I think the intended meaning is preserved, but I honestly can’t tell what you’re trying to say. Are you saying that there are no rights-based claims to equal marital recognition that you agree with, or that there are none that have been granted? It looks like you’re saying both, given that you cite Goodridge, but that seems ridiculous. I’ve only skimmed Goodridge, but what exactly do you think the plaintiffs were arguing if not a rights-based claim? If I remember right, it was equal protection and due process . . . and I’m pretty sure those are rights.

As for your comment beginning, “We can assume that unjust discrimination will be perfected,” I’m again just not sure what you’re trying to say or what you want me to do with it. I realize that you’re trying to clarify your earlier request that I explain what relationships would be “tolerated” as opposed to “preferred,” but your clarification only muddles the water. Maybe I can head you off at the pass... what’s “preferred” would, I suppose, be whatever relationship is accorded benefits under the law. That will change over time as the opinions of the majority and the protections of the minority change. What is “tolerated” is anything that isn’t prohibited, and you need (at least in my formulation) an articulable and provable harm to some party in order to prohibit a relationship. I’m not entirely sure that’s what you’re asking for, but hopefully it will prevent another long lecture on “the integration of the sexes” and “responsible procreation.”

Most of the rights in question can be achieved by anybody who can read "Legal Documents for Dummies" easily available at the nearest library. Or, if they're gluttons for mistreatment, they could actually pay an attorney to do this stuff.

I hate to interrupt your discussion here, but I've seen this comment bandied about in several threads and had to respond... The statement above is very far from reality! The legal documents we can draw up are limited in scope and can still be challenged in court. And of course we have no access to VERY important Federal laws...

My partner finally got his greencard a few months ago after spending 9 years here on different visas and spending tens of thousands of dollars on laywers, and it will take at least another 10 years before his citizensip moves forward. With federal rights, all this could be skipped. In fact, the word is that if we got married (we live in MA) this could have ENDANGERED his visa status and been deported (since marrying in MA would have "broken" the Federal visa agreement). Not sure about marrying on greencards. Straight couples, of course, don't have to worry.

Of course, we can't inherit each other's SSN benefits. If either of us dies, our parents can take over funeral arrangements even OVER OUR expressed wishes. We can't file joint federal taxes. We can't try to adopt without a host of problems. My partner is closeted at work because he could get fired (and if you say, well MA has laws against that, that's BS because if a company wants to get rid of you, they'll find a reason).... and this is in blue-state liberal MASSACHUSETTS!

None of these things are solved via any legal document. My partner and I have been together for 8 years, we love each other, pay our taxes, and try to be good people. And yet we're still banned from entering an agreement that any straight couple can get into by driving into Vegas and not even get out of their car.

All y'all's discussion is very good but academic, and ignores the human side of the equation. We are people who love each other and wish to enter into marriage as a sacred union between two people. In the end there's nothing more than that fact. All these other discussions are just fluff.

Colin: You understand my position, though, and you understand my arguments - redefining my use of “equal access” to meet your personal definition and then complaining that the result doesn’t make sense is not a substantive response.

I acknowledged your use of the concept of equal access which is extolled in the pro-SSM campaign.

In contrast my use of the concept of equal access has been used by courts in marriage cases around the country. It is not my personal redefinition. It is not a redefinition.

You have emphasized that the marriage purpose of marriage is established by its requirements (and lack of requirements). There is no requirement based on sexual orientation. No such rule bars the homosexual individual from marriage.

So it is indeed you, Colin, who would redefine equal access by presuming a sexual orientation criterion for marriage. You begin with your conclusion.

Colin, you also haven't established a baseline for the relationship status.

Read the opinions of Justice Marshall in both Goodridge and the related advisory. She notes that equal access exists for homosexual individuals but then she proceeds, as you would, from a redefinition of the thing that the law recognized and preferred.

She also, as you, declares that marriage is the creation of the government. She flounder about and her reasoning is very poor. She also did not respect theover-ruled the wishes of the polity, which is your supposed starting line. Even today there has been no amendment of the marriage statute that she read to get to her predrawn conclusion.

You haven't established the baseline for the relationship status on that clean slate. And if you think Goodridge is your best example, then, your dependance on the wishes of the polity seems more like rhetoric than principle.

RichK: We are people who love each other and wish to enter into marriage as a sacred union between two people. In the end there's nothing more than that fact. All these other discussions are just fluff.

But two men cannot form a conjugal relationship.

You want legal incidents of marital status to be applied to the one-sexed arrangement.

Is love the basis for the government's intervention?

The pro-SSM advocates would be hostile to your idea since they have declared that if something is not required, absolutely, it is irrelevant to the purpose of the relationship status.

Much of the pro-SSM argument is fluff drawn from emotivism.

That nonmarriage is treated differently than marriage is not surprising, surely. Your complaint is about things like the immigration law and if your argument has merit that law can be reformed to suite the purpose you have in mind for it.

In fact, the word is that if we got married (we live in MA) this could have ENDANGERED his visa status and been deported (since marrying in MA would have "broken" the Federal visa agreement).

RichK, that's interesting (and horrible). Would you mind explaining a little bit further? I hadn't heard about this intersection with immigration before.

She also did not respect theover-ruled the wishes of the polity, which is your supposed starting line.

This, I suspect, is the core of your antagonism. While I doubt you'd ever vote to give homosexuals equal rights, I have no reason to think you'd champion discrimination so enthusiastically if you thought you could always rely on the quite prejudices of the majority. Clearly you can't, though; those biases are washing away as society becomes more egalitarian. We seem to have stumbled across a point where some courts are willing to call a spade a spade and reject the idea that there is a rational basis for such discrimination, but a majority of voters and other courts are not.

Discomfort over these court cases is not unreasonable. Everyone would prefer that the majority grant equal rights democratically, rather than having it come down to litigation. The sad fact, however, is that majorities are often motivated by naked animus and prejudice. (We see this, for instance, when people object to same-sex marriage despite a total lack of proof that they will be harmed by governmental recognition of those relationships.) Thankfully, our nation has enshrined protections that defend minorities from irrational prejudice - for instance, the equal protection and due process guarantees adjudicated in (among other cases) Goodridge,Loving, and Brown.

You have emphasized that the marriage purpose of marriage is established by its requirements (and lack of requirements). There is no requirement based on sexual orientation. No such rule bars the homosexual individual from marriage.

I'm going to go ahead and say it, although I'm sure you've heard it before: Similarly, before Loving, no rule barred black individuals from marrying. They just couldn't marry the partner of their choice. I contend that denying one class of persons the right to marry a partner whom they love, without proof that the match is harmful, is not equal protection of the law.

I don’t accede to your insistence on dividing his work into “research” and “analysis.”

I sought your clarification.

The data sources are credible. The sources of analyses that he cited are credible. Kurtz's description and review of that research provides a fair summary of it.

You disagree with Kurtz's own analysis and conclusions, as I said.

If you are going to complain about his contribution specifically, then, you need to be clear on this distinction lest you throw the baby out with the bathwater.

You have not yet provided a baseline for marital status.

Without that you will be confuddled as you attempt to follow the analysis, to comprehend it, and then to assess the propsect of harm to the social institution of marriage.

If you haven't got a baseline, then, it is fair to say that you make yourself vulnerable to the mischaracterizations of what has been said of Kurtz's work by people such as Maggie Gallagher, Robert George, and David Blankenhorn.

Are you saying that there are no rights-based claims to equal marital recognition that you agree with, or that there are none that have been granted?

I asked for your best example of the justification for a rights-based claim. You replied with another question and inserted an empty phrase, "equal marital recogniton". You circled back without providing the justification.

I meant to say that "We can assume that the elimination of unjust discrimination will be perfected."

Discrimination can be just and it can be unjust. Making the distinction on the clean slate can be assumed for the sake of getting to your purpose for the relationship status.

(I think you have made it clear that you think the status would have nothing to do with procreative justice, for example. That would be taken care of in some other way, that you might favor.)

You misread my question about preferential status.

But I'll try to step into your shoes and approach this clean slate the way you seem to be struggling with the question.

Consider the full range of relationship types. Of that range, some might be outlawed and penalized. In your view this only happens if harm can be shown.

Okay, but now we are speaking of relationship status. Relationship types outside of the new relationship status will not necessarily be not tolerated. They just wouldn't fit the purpose of the status.

If that purpose is merely to distinguish between the tolerated and the untolerated types, okay, that is fair. You would write on the clean slate just the list of untolerated types. The purpose of the tolerated status would be to prevent harm, yes?

But I think the pro-SSM campaign demands more than mere tolerance. Do you agree that is the case? Maybe you don't agree with the demand?

Usually the demand is described in terms of protection. Some relationship types (friendship is one example) don't get a status from which protection flows, even though these types are not outlawed. Business relationships get protection based on the purpose of a commercial partnership, but these types of relationships are distinguished from other types based on that purpose.

So if the status we will write on the clean slate is about protection, and no more than that, okay, fair enough. What is the purpose of that protective status?

There is also a theme that runs through the SSM argument which elevates the one-sexed arrangement to a special status (marital status is a special status -- it is a preferential status). Maybe you do not like the idea of elevating some relationship types while leaving others behind.

But if that is your view, then, what is the purpose of "extending" marital status?

If you favor a status that shows societal preference, what is the purpose of the preference?

--------

I'll reiterate that it is not a question about which types are eligible for tolerance. We begin with the purpose of creating a status. Then we draw up eligibility. Exclusion does not depend on harm in general, but is based on accord with the purpose of the status created.

A social institution is not created by the government. So the clean slate analogy may be difficult for you to imagine. But that clean slate is implicit in the SSM argument that has emphasized requirements and so forth.

So if it would help you with the clean slate, start with the definitive requirements for the status you'd create. Then, instead of stating the requirements as arbitrarily imposed by the wishes of the polity, state the principles that support the purpose thus defined.

This is not empty word games, Colin, but the hard work of justifying your proposed reform.

In fact, the word is that if we got married (we live in MA) this could have ENDANGERED his visa status and been deported (since marrying in MA would have "broken" the Federal visa agreement).

RichK, that's interesting (and horrible). Would you mind explaining a little bit further? I hadn't heard about this intersection with immigration before.

I'm not going to explain the legal issues involved because I'm not an immigration lawyer. But I believe the plain-spoken argument goes like this:
A visa is a legal agreement that a resident alien enters into with the Federal government. A part of that agreement (at least for the types of visa's I'm talking about, I'm not familiar with all the types out there!) is that once the visa expires, you either reapply or leave the country.

A state marriage in MA implies that you want to break this agreement and stay with your spouse in the US. So when the visa is up for renewal, it is certainly at the discretion of the INS/DHS that since you broke the agreement, they will not renew your visa and deport you. When equal marriages became legal in MA, all the legal gay/lesbian websites warned bi-national couples not to enter into the marriage, especially if one of you is here on a visa.

Now that my other half has a greencard, we'll have to hire an immigration lawyer to find out whether us marrying still puts anything else in jeopardy. Of course that's no guarantee either since any future administration can change laws pertaining to greencards. We may have to wait another dozen years before being able to legally marry.

I'd also like to make a completely separate point, since many of the definitions I've read have separated out a religious marriage from civil marriage, and imply that only civil marriages are the ones that would take advantage of marriage equality. Not so: There are plenty of churches that will perform a religious marriage between same sex members (I believe Reform Jews are the latest(?)). They then rightly demand the equivalent rights any other religiously married couple has access to since the same rights (normally) apply to religious and civil marriages.

Colin: "before Loving, no rule barred black individuals from marrying. They just couldn't marry the partner of their choice"

Actually, the rule penalized white men from marrying non-white women; and white women from marrying non-white men. The Loving decision was not gender-neutral.

In fact, the white supremist system selectively segregated the sexes beyond marital status. The system penalized casual dating, unwed cohabitation, and even interracial prostitution.

But with marital status the defended goal was to prevent the legitimization of children born of mixed "races" and the so-called dilution of the white "race". That the racists had such a hard time determining "whiteness" should be a very good signal to SSM advocates that the analogy with race is profoundly flawed.

The nature of humankind is two-sexed. The nature of human generativity is both-sexed. There is one human race. Human beings do not create hybrids of men and women.

The system against interracial marriage recognized the nature of marriage even as it unjustly pressed a racist identity filter into the special status of marriage. It hijacked the preferential treatment of the social institution.

The SSM campaign seeks to bring selective sex segregation under the umbrella of marital status -- and would do so based on the gay identity filter. It may not be motivated by the sort of animus that existed with the racist filter, however, the hostility toward the core of marriage is very prominent. That takes the form of a passive-aggressive cynicism against the core of marriage but with an overly romanticized idealization of the homosexual relationship type.

The social institution of marriage is recognized, not originated, by societal preference expressed in the Law. Maybe the Law should be changed to abolish the man-woman criterion of the preferential status now accorded the social institution of marriage. That's the effect of the SSM argument.

If so, that goal should be defended directly as a substitution rather than dishonestly as an "extension".

Instead of treating marriage as marriage, the SSM proposal would treat marriage -- all marriages -- as the one-sexed relationship i.e. minus integration of the sexes, minus responsible procreation, and minus the direct connection with the social institution itself.

That's a lot to justify and the SSM campaign is far from beginning the task.

Considering that 'conjugal' is defined as 'of, pertaining to, or characteristic of marriage' then that's true, but that's just a circular definition. So two man can't get married because marriage is between a man and a woman. Right. What other circular arguments will you make? Or was 'conjugal' a shot at 2 men not being able to conceive? I thought we left that argument behind a while ago in terms of infertile opposite sex couples...

Is love the basis for the government's intervention?

No, I want the same basis as applied to mixed-sex couples. Two willing people of sound mind and body, not related by blood, of legal age, who agree to enter into a mutual contract with each other, with an optional religious ceremony.

I don't want to play the race card, but just like race is no longer a factor in marriage, or religion, or physical handicap, the sex of the two people shouldn't either.

That nonmarriage is treated differently than marriage is not surprising, surely. Your complaint is about things like the immigration law and if your argument has merit that law can be reformed to suite the purpose you have in mind for it.

You have two people who are together for exactly the same reasons as a straight couple and under the exact same conditions (willingly, legal age, not related, etc) and want the exact same rights and privileges. Hmm, if it walk like a duck, and sounds like a duck...

And you know what? All our friends and acquaintances consider us married (and are surprised we aren't legally until we tell them about the immigration issues). All we lack are the freakin' rights.

I don't want to raise the whole issue of how you call it because quite frankly if we can be "civil unioned" but have the exact same federal and state rights that straight couples do, then you can call it what you want. We will still call it married. Of course, then if they really are legally the same, why create a whole separate thing (not to mention that the existens of civil unions do water down marriage and make it less special!).

If you are going to complain about his contribution specifically, then, you need to be clear on this distinction lest you throw the baby out with the bathwater.

That’s a fair critique of what I said. I’m not qualified to assess the merits of the statistics Kurtz relied upon, nor have I researched them myself, so it’s true that I only take issue with his analysis of them. It did not occur to me that this was controversial. In fact, I still don’t think that it is, but it’s worth pointing out that you’ve accurately identified the nature of my disagreement.

You have not yet provided a baseline for marital status.

Without that you will be confuddled as you attempt to follow the analysis, to comprehend it, and then to assess the propsect of harm to the social institution of marriage.

If you haven't got a baseline, then, it is fair to say that you make yourself vulnerable to the mischaracterizations of what has been said of Kurtz's work by people such as Maggie Gallagher, Robert George, and David Blankenhorn.

This, however, still makes no sense to me. What do you mean by “a baseline for marital status?” An essential qualification, as in some factor that distinguishes married people from unmarried people? That would be created by the law in question, if we’re in a legal context, or the ceremonial or customary practice, if we’re discussing culture. That is, I’d say a same-sex couple that had a religious ceremony in Texas was married in the cultural sense, and that the same couple who filed a certificate (assuming that’s the legal requirement) in Massachusetts was married in the legal sense. I’m not sure if that’s what you’re asking, though.

I asked for your best example of the justification for a rights-based claim. You replied with another question and inserted an empty phrase, "equal marital recogniton". You circled back without providing the justification.

In fact, I think I’ve answered this twice. In short, I’d say the best justification for a rights-based claim is equal protection and, to a lesser extent, due process. I’m not sure if that’s what you’re asking, though - your questions are maddeningly vague. What do you mean by “justification for a rights-based claim?” Do you want me to explain the claim (which would be EP and DP), or the justification for it (which would be that I think the rights are validly asserted)? If the latter, then I’m very sorry - I just don’t have time to write an essay. Goodwin is a decent place to start, though. If you email me, we can have a more in-depth discussion on this; this thread will eventually close.

I meant to say that "We can assume that the elimination of unjust discrimination will be perfected." Discrimination can be just and it can be unjust. Making the distinction on the clean slate can be assumed for the sake of getting to your purpose for the relationship status.

Sorry if I misunderstood you, but it wouldn’t change my answer - I’m still not clear what you’re concerned about. I agree that discrimination is not inherently unjust. In this context, however, the discrimination is the selection of a class of people who will not be allowed to collect government benefits that are available to a second, more popular class. I think the burden (morally) is on those advocating discrimination in rights to demonstrate why the discrimination is at least rational. (Although, because I feel that this very debate demonstrates that homosexuality is a suspect class, that the standard of scrutiny should be heightened. I don’t make any bones about it, because like the Goodwin court I don’t think anti-homosexual discrimination is justifiable even under rational basis review.

I think you have made it clear that you think the status would have nothing to do with procreative justice, for example.

I don’t even know what “procreative justice” could possibly mean in a legal sense, so no, no status I propose would have anything to do with it.

I'll reiterate that it is not a question about which types are eligible for tolerance. We begin with the purpose of creating a status. Then we draw up eligibility. Exclusion does not depend on harm in general, but is based on accord with the purpose of the status created.

A social institution is not created by the government. So the clean slate analogy may be difficult for you to imagine. But that clean slate is implicit in the SSM argument that has emphasized requirements and so forth.

Ahhhhhhhhhhhh. Forgive me if I skipped the bulk of your post, but this section is what finally made your point clear to me. I think I understand you now. We begin by creating a status: not the idea of marriage, which the government does not and cannot dictate, but the recognition of that status in law. “Eligibility” is, in most jurisdictions, a man and a woman who choose to associate and claim this recognition. As other parties claim access to the benefits preferentially extended under that rubric, I believe they should be granted unless there is an articulable and provable harm. I believe that such a harm can be shown for consanguinous and plural marriages, as Prof. Carpenter has discussed here in the past. I note that I’ve never seen any rational or empirical proof of harm by opponents of same-sex marriage; I therefore feel their opposition is immoral and legally unjustifiable.

Insofar as you’re discussing how to create an institution out of whole cloth and determine its eligibility requirements at the time of inception, that’s an interesting question. I don’t think it would be hard, because the same process would apply - it would just happen prior to inception, rather than post hoc. But that’s not relevant to the real-world debate.

This is not empty word games, Colin, but the hard work of justifying your proposed reform.

I’ll grant that, as I now understand your questions, you’re not just playing word games. Which is not to say that you don’t do exactly that a great deal of the time; “replacing marriage with nonmarriage” is completely meaningless in a world where same-sex marriage is marriage in every sense of the word in some jurisdictions.

RichK: "So two man can't get married because marriage is between a man and a woman. Right. What other circular arguments will you make? Or was 'conjugal' a shot at 2 men not being able to conceive? I thought we left that argument behind a while ago in terms of infertile opposite sex couples..."

The nature of marriage is both-sexed. Follow along:

1. The nature of humankind is two-sexed.

2. The nature of human generativity is both-sexed.

3. The nature of human community is both-sexed.

4. Family is the basic community founded on the relationship of man and woman, husband and wife, father and mother.

5. Marriage integrates the sexes and that is combined with the contingency for responsible procreation. This is the core, the essence, the nature of marriage.

6. The nature of the social instituition of marriage is both-sexed. The requirement that both sexes participate is at the core of the thing recognized by the various regulations and protocols.

7. This core is extrinsic to the one-sexed arrangement, of which the homosexual relationship (idealized version or some other version). Two men, and two women, are not capable of forming the conjugal relationship.

8. Fertility is both-sexed, not one-sexed. Likewise, infertility is both-sexed; subfertility is both-sexed. One cannot be any of these things without the other sex.

9. Unlike the constantly sterile one-sexed arrangement, the both-sexed combination is variably fertile. This variability is the nature of fertility. That nature is not shared by the one-sexed combination.

10. The legal incidents of marriage are not marriage itself. Access to what flows from marital status is denied to the unmarried -- i.e. those who do not enter the social institution that is recognized and preferred.

-------

Equating the disabled both-sexed couple with the one-sexed couple is pretty lousy argumentation. It actually undermines your other claims to a protective status.

I concede that the label "marriage" has been misused in some jurisdictions.

What a farce. Those jurisdictions define "marriage" as inclusive of same-sex marriages, and they are entitled to do so. "Marriage" is what the law says it is, and the law in those places says that it's inclusive of same-sex marriages. The fact that you don't like their legal terminology doesn't make it go away.

I'm incredulous that you would say this, "the replacement entails discarding the meaning of marriage with which you disagree," with a straight face. That is exactly what you're doing - discarding their valid, legal definition because you don't agree with it.

Equating the disabled both-sexed couple with the one-sexed couple is pretty lousy argumentation.

Again with the disability nonsense. Did you ever find any external, relevant support for your contention that the infertile are allowed to marry only as a sop to the disabled? Last time, you cited a definition of marriage that also included the confinement of women to the home. Anything within the past five hundred years? Any example of a lawmaker or scholar opining that, but for society's kindness, the infertile would be ineligible for any marriage?

Frankly, it creeps me out to see such a dictatorial, nanny-state insistence on micromanaging private citizens' personal relationships justified with nothing more than Orwellian wordgames and sheer, unadulterated fantasy.

Colin: "Marriage" is what the law says it is, and the law in those places says that it's inclusive of same-sex marriages. The fact that you don't like their legal terminology doesn't make it go away.

The Law does not create marriage. It does not define marriage. It does not redefine marriage.

It can only affirm the social institution and either tolerate it (all diverse arrangements are treated with equal indifference), protect it (safeguard against governmental intrusions), or prefer it (encourage it as an ideal arrangement).

The nature of marriage is not one-sexed, so it does indeed appear that these other jurisidictions have merged marriage with nonmarriage. That pushes marriage to a merely protective status.

That is the error these places have made. And they did it by misuse of the word, marriage, and all that marriage recognition entailed.

But based on your claim above, the one-sexed arrangement is not marriage until the law says so. Yet you have been arguing the contrary.

You have the privilege to do so, mistakenly, but somehow you decry my noting the error made in these other places.

Colin, you advocate replacing the meaning of marriage. If you point to these other jurisdictions as having accomplished that which you desire here, then, pick one of them as your best example and we can discuss the error that was made there.

Colin: "Last time, you cited a definition of marriage that also included the confinement of women to the home.

I cited no such thing. In these types of discussions we can all make mistakes. Please take care to refer to the words I have actually used. Thanks.

Colin: "Did you ever find any external, relevant support for your contention that the infertile are allowed to marry only as a sop to the disabled?"

I have not made such a contention.

Would you clarify what you would infer from the presence of married couples who experience infertility?

Colin: "Frankly, it creeps me out to see such a dictatorial, nanny-state insistence on micromanaging private citizens' personal relationships justified with nothing more than Orwellian wordgames and sheer, unadulterated fantasy."

That's quite the rant. Well done. But irrelevant to the topic at hand.

Look, you disagree about the core of marriage.

Maybe you also disagree about the nature of humankind, of human generativity, and of human community. You haven't said.

But you have not yet provided the basis (the baseline, if you will) for any status on par with marriage -- that excludes the core as I described it.

But you refer to the infertility topic as nonsense. The trouble is, Colin, that to have the government police fertility to weed out the infertile would require the very sort of intrusions -- micromanagement as you might say -- of conjugal relationships. Do you really think that it would do much good to have the Fertility Police peering over the shoulders of couples who experience subfertilty or other forms of procreative disabilities?

Apparently, not, but you also are confused about the nature of marriage and then get upset when your confusion is denoted here.

The conjugal relationship is not a private relationship. Yes, it entails privacy of a very high degree, however, the status is a public status with a publicly shared meaning and, as such, is normative.

Tell me how society would benefit from making normative the core of SSM? And the trade-off would be to abandon the normative -- and noncoercive -- power of a social institution that is the bedrock for sex integration and responsible procreation.

You hav eyet to even make the effort. So calm down and just address what is actually said rather than taking issue at every turn with definitions. I realize that the SSM argument is about the supposed redefinition of marriage -- and, yes, as you and others claim, just the "civil marriage" variety -- but that's a pretty huge problem for your side. If the state authority can define marriage, then, it can make of it whatever it wants.

So you always circle back to lame rights-based claim that does not hold water, given the nature of humankind, of generativity, of human community, and, yes, of marriage.

Colin: Insofar as you’re discussing how to create an institution out of whole cloth and determine its eligibility requirements at the time of inception, that’s an interesting question. I don’t think it would be hard, because the same process would apply - it would just happen prior to inception, rather than post hoc. But that’s not relevant to the real-world debate.

It is highly relevant since you and other SSM proponents have declared the decisive importance of requirements.

Is the purpose of the status defined by its requirements or not?

Or are the requirements determined by the purpose of the status?

In any case, what are the definitive requirements of the status you seek to attain for the one-sexed combination?

And these requirements define what purpose?

I think you could test your responses first by starting with the clean slate. Afterall, you think this would not be hard. So make the effort, please, rather than push aside the very test that is implicit in your own argument.

I'll concede the biological nature and the procreative actions of humans as being two-sexed, that is obvious. But when you mix biological facts with more amorphous things like "community" that's when your argument falls apart to me. Human community is whatever the community says it is. That is free association. We could equally argue that the nature of humanity is to have leaderiship structures which most naturally correspond to a monarchy, so let's bring that back too. But no one is arguing that (well, I'm not!).

Community and family, while it has a basis in biology, is elastic enough to include many things. Families can include friends and neighbors, adoptions, etc. A straight family can define itself however it wants, so if a couple wants to adopt, then bam, they are a family. No one is telling them "well, your adoptive son isn't related to you by blood so you're not a family". I am defining my family, and my partner and I see no difference between us and straight couples. We can do everything you can do (though obviously not in the same way). We fight, pay taxes, raise families, etc. This is a FACT and these families deserve the same protections and rights and privileges as any other family.

And I take objection to:

6. The nature of the social instituition of marriage is both-sexed. The requirement that both sexes participate is at the core of the thing recognized by the various regulations and protocols.

While the majority of couplings are both-sexed, there is no "requirement". It may be both-sexed to you, but not to others. When I was born, I didn't come with a manual. Straight couples when they meet don't have a checklist that says "OK, you're the opposite sex, check". You just are attracted to whomever you are attracted to, which leads to relationships and the solidifying of those relationships in the social and legal institution of marriage. And this is already happening in fact, just not in name (or equal rights) between gays and lesbians.

It all really boils down to this: gay and lesbian marriages are not "worth" giving all the rights and responsibilities that an equivalent straight couple automatically has. Nevermind that I have yet to see any proof of harm, and I'd go even further to say that legalizing equal marriage is good for us, it's good for you, it's good for marriage, and its good for all our families.

Thank you for the invitation, but I find the arguments of the Opine authors to be of extremely poor quality. I can find many places on the internet to delve into the prejudices of others, and most will have more compelling pretextual arguments.

Perhaps I attributed another Opine author's stance on the "disability" of infertility to you? If so, I apologize. Your shoddy arguments run together, and it's difficult to tell you apart. But I'm not convinced that I misremember. You object to my characterization of your position: that the infertile (voluntarily or otherwise) are allowed to marry only because society is forbearing enough to let them into an institution they otherwise have no right to.

But then you say: "The trouble is, Colin, that to have the government police fertility to weed out the infertile would require the very sort of intrusions -- micromanagement as you might say -- of conjugal relationships. Do you really think that it would do much good to have the Fertility Police peering over the shoulders of couples who experience subfertilty or other forms of procreative disabilities?"

You do seem to think that the infertile have no right to marriage, but are the beneficiaries of our forbearance. Clearly I do not, and you're not reading very carefully if you think your questions are at all germane to me. I am as disgusted by the thought of the Fertility Police as I am of the Sexual Orientation or Marriage Police. Fertility is no part of the modern concept of marriage. All else being equal, the infertile have the same right to marry as anyone else. You clearly cannot demonstrate otherwise - you merely pretend that this is a core requirement, despite a total lack of proof.

This brings us back to your point: why Opine is a terrible place to find principled arguments against same-sex marital recognition. We always come back to the same, subjective hand waving: "The nature of human generativity is both-sexed. There is one human race. Human beings do not create hybrids of men and women." "Two men, and two women, are not capable of forming the conjugal relationship." You don't want to argue law, you want to argue magic. You haven't moved beyond what feels right to you, even if you can't articulate it rationally, which is why you appear to be letting your prejudices guide your thinking.

I am an empiricist. If you want me to accept that fertility is a core requirement of marriage, prove it. If you want me to accept that "two men, and two women, are not capable of forming the conjugal relationship," then prove it. Waving your hands and falling back on your instinctual bias is less than proof in my eyes - it's a demonstration that you don't think that you have any proof, either. This is why your inability to point to the mechanism or proof of harm to mixed-sex marriages that same-sex marriage would cause is so damaging. It's a sign that all you have is skimpy philosophy to support your arguments. And because your argument is for discriminating against a vulnerable minority, I find that tawdry and nasty.

RichK: "While the majority of couplings are both-sexed, there is no "requirement".

We are discussing the conjugal relationship, not couplings.

This discussion takes place under a post about the nature of marriage. If you insist that the government creates marriage, then, we are indeed not talking of the nature of marriage.

There is indeed a requirement for the participation of both sexes, however, your goal is clearly to remove that requirement. When the definitive requirements of a status are removed, then, the nature of that thing is put aside.

I understand that you believe that the nature of couplings is the same for both-sexed and one-sexed variations. That is the point of contention. I point to the nature of humankind and so forth, which are not something the government creates. This is not biological determinism, mind, but in this we can easily discern the nature of marriage itself.

You clearly disagree and reject the core of marriage: integration of the sexes combined with responsible procreation.

Now it is also clear that you reject the need for society to promote that core -- not just because you reject it as the core of marriage but also because you reject the need to promote what you think would happen anyway.

But let me ask you, do you think it is essential to society that what I've called the core of marriage actually takes place? That a critical mass of people in society fulfills the compound purpose of integration of man and woman and responsible procreation? Or is it something that is entirely irrelevant to the well-being of society?

I used the term human community because no such community can long exist if it does not regenerate itself and, I maintain, that a flourishing community of men and women regenerates itself best within a social institution that integrates man and woman deeply -- i.e. as husband and wife and as father and mother.

But perhaps that is also rejected by your view of human community?

I also want to make the point that I've invited you to justify the merger of the one-sexed arrangement (a subset of which is the idealized homosexual relationship type) with marriage. I have not argued that the one-sexed arrangment -- homosexual or not -- should be outlawed (i.e. banned) nor that it should be untolerated, nor that it should be left with absolutely no protections. Far from it, the invitation to start with the purpose -- which I see you seem to characterize as protective -- is still on the table.

So, no, I have not disparaged the arrangement which fundamentally is not conjugal. I have, however, maintained that society should prefer the conjugal relationsip -- i.e. husband and wife -- over all other kinds of relationships, for the reasons I've given, based on what the social institution of marriage is (its nature) and based on what society needs (i.e. in terms of a human good). This is not an argument that is in principle, or in effect, anti-one-sexed.

I do not presume that your goal is anti-marriage, but the arguments do have the effect of demoting marital status from a preferential status to a merely protective status. And the rhetoric of the pro-SSM advocates tends to disparage the essense of marriage, as I have described it faithfully, as unjust -- and points to a level of intolerance for what does not fit the one-sexed relationship type. I don't attribute ill-motive, but I am concerned about the rhetoric that tarnishes something that is essential to the flourishing of society.

Colin, what do you infer (about the social institution of marriage, not the legal construct) from the presence of married couples who experience infertility?

The topic is not the legal shadow but the thing itself.

-------

What do you infer (again, about the social institution) from the lack of a requirement?

What do you infer from the lack of absolute enforcement of a requirement?

And are you still clinging to requirements being applied to each and every marriage or are you looking at the requirements that define the social institution itself? In other words, are you trying to micromanage the marriages of your fellow citizens or are you just failing to comprehend what a social institution actually is?

You pose as if your reasoning is rock solid and unassailable. Okay, then try to respond this time without the cheap shots and lazy resort to misdirection. Stick to the topic and put forth your argument as best you can.

If that reasoning is so very strong, and it might be or it might not be, put it on the table.

The nature of marriage is ....

The definitive requirements of marriage (i.e. of the social insitutition) is ....

The difference between a social institution and the legal shadow is ....

what do you infer (about the social institution of marriage, not the legal construct) from the presence of married couples who experience infertility?

That the capacity of the spouses to generate, bear, or raise children has no effect whatsoever on their right to have their marriage recognized in law. Do you have any evidence otherwise?

The topic is not the legal shadow but the thing itself.

I am not a wizard. I can't look into my crystal ball and see "the thing itself" floating around in metaphysical space. I am, however, an attorney. I am concerned with the law. With fact. With empiricism. The topic is the law, and the actual, factual results of changing it. Your abandonment of that arena is one of the primary reasons why your flighty arguments are so utterly unpersuasive.

I think your questions are inane, but as I've asked your compatriots to answer questions in the other thread I can't deny you here.

The nature of marriage is ....

Defined by law, which varies from jurisdiction to jurisdiction.

The definitive requirements of marriage (i.e. of the social insitutition) is ....

Defined by law, which varies from jurisdiction to jurisdiction. I am not concerned with "the social institution," but the legal practicalities. Insofar as you mean marriage outside the recognition of law, such as a couple religiously married without legal recognition of their marital status, the requirements are subjective. The spouses see themselves as married; outside observers may agree or not, as they choose. There is no existential binary "MARRIED" bit that flips once they meet magical marital requirements.

The difference between a social institution and the legal shadow is ....

I assume that by "legal shadow" you mean the laws granting benefits to marital status. Those laws put into effect a more-or-less consensus version of the commonly recognized institution. As the "institution" is incorporeal, abstract, and subjective, the law is all that we can handle and observe. The "legal shadow" is a real thing, with real consequences; the "social institution" is a custom or practice that happens with our without legal recognition, and is subject to all the vagaries of subjectivity.

> "... I find the arguments of the Opine authors to be of extremely poor quality. I can find many places on the internet to delve into the prejudices of others, and most will have more compelling pretextual arguments."

Perhaps and perhaps not. But aren't you the same Colin that tried to rally in defense of Caliban Darklocks' misuse of "parentage"?

Isn't that you who attempted some very egregious errors, emphatically re-enforced them with unscrupulous accusations, and wound up being wrong from the beginning?

Colin, your attempt here seems to be one of trying to slander what you cannot meet in reasonable and rational discussion. The shame is entirely on you.

> "You object to my characterization of your position: that the infertile (voluntarily or otherwise) are allowed to marry only because society is forbearing enough to let them into an institution they otherwise have no right to."

That was a paraphrase of my argument, and as I recall I did not object to it. In fact, that post seems to have dispelled the last attempts to criticize that position with any substance.

> "You do seem to think that the infertile have no right to marriage, but are the beneficiaries of our forbearance."

To the contrary, it is their right which establishes their claim of disability in the first place.

> "I am as disgusted by the thought of the Fertility Police as I am of the Sexual Orientation or Marriage Police."

Then it is good news to you that there is no police running around telling gays their marriages to people of the opposite sex should be dissolved. There is no law that requires orientation of any kind in marriage. There is, however, enumeration of sexual orientation as a protection. And there are establishments such as ex-gay watch that seem to revel in every failed "opposite-orientation" marriage they see, when the outcome is another homosexual relationship. Or the person was once considered gay.

> "Fertility is no part of the modern concept of marriage."

This is your example of a good argument? No part whatsoever? Such a naive and absolute statement, easily contradicted by the jurisprudence cited earlier, as well as the colloquial references and understanding of marriage.

> "All else being equal, the infertile have the same right to marry as anyone else. You clearly cannot demonstrate otherwise - you merely pretend that this is a core requirement, despite a total lack of proof."

Hence their claim as a disability. However, homosexuality is not a handicap. Or are you arguing that homosexuality is a handicap? I can never tell. You just squirm away from answering that question every time I bring it up. Squirm away, great discerner of valid arguments, squirm away.

> "This brings us back to your point: why Opine is a terrible place to find principled arguments against same-sex marital recognition."

You should be more honest. The problem is not the princple or the quality of the argument. The problem is the conclusion. You've yet to provide an example of a good argument. Even when requested so that it can be patterned for an argument for equal gender representation in marriage.

> "We always come back to the same, subjective hand waving: 'The nature of human generativity is both-sexed. There is one human race. Human beings do not create hybrids of men and women.'"

Another clue as to your inability to see a good argument when it is handed to you is how you call the observable and scientifically understood nature of reproduction (especially human reproduction) as subjective hand waving.

> [more examples you claim are subjective] "Two men, and two women, are not capable of forming the conjugal relationship."

That is also observable, verifiable and demonstrated. You realize even Dale Carpenter concedes that the traditional description of marriage is "conjugal", because he understands what that word means. Just as with parentage, you don't understand what a word means and contend that your own subjective application of definition is as valid as the accepted definitions everyone else understands.

> "You don't want to argue law, you want to argue magic."

I don't know about that. The person supplying magic re-interpretations and unique definitions is yourself.

> "I am an empiricist."

Case in point of the above assertion.

> "If you want me to accept that fertility is a core requirement of marriage, prove it."

So is a definition provable and discrete or is it malleable and dynamic? If it is discrete, then I will offer a proof that way. If it is dynamic and malleable, then I can only offer why it should be that way.

> "If you want me to accept that "two men, and two women, are not capable of forming the conjugal relationship," then prove it."

Yet, if the definition used to establish a proof is itself a moving target then any proof is vacuously true.

> "And because your argument is for discriminating against a vulnerable minority, I find that tawdry and nasty."

“Misuse?” CB said that adoption provides children parentage. That is entirely accurate. I offered a hasty defense that should have been better written. Despite that, you are still egregiously in error. Adoption provides children parentage. It’s a meaningless rhetorical point, but it’s endemic to your rough thinking that you’re so bent on dictating the terms of others’ relationships.

That was a paraphrase of my argument, and as I recall I did not object to it. In fact, that post seems to have dispelled the last attempts to criticize that position with any substance.

I have difficulty telling your awkward rhetoric and empty assertions apart. Forgive me if I mistook one confused, rambling rant for another. What in that post do you believe disposed of anything? It is beyond question that our society does not require fertility as a prerequisite to marriage. The infertile have the same rights to marriage the fertile do; their marital rights aren’t a crutch to some disability. You’re merely pretending. No laws, no tests, no cases, no statutes discriminate between the fertile and the infertile.

Hence their claim as a disability. However, homosexuality is not a handicap. Or are you arguing that homosexuality is a handicap? I can never tell. You just squirm away from answering that question every time I bring it up. Squirm away, great discerner of valid arguments, squirm away.

Is your argument that they are disabled because they are married and infertile? Are only married infertile people “disabled,” while singles aren’t? You’re not explaining your point clearly at all. We know that the law does not discriminate between fertile and infertile people, and it’s not because it would be difficult to do - it’s because the law doesn’t care.

No, of course I don’t believe that homosexuality is a handicap. Nor do I believe that you’ve ever asked me that question. Frankly, the fact that you think this is a serious question is creepy.

Another clue as to your inability to see a good argument when it is handed to you is how you call the observable and scientifically understood nature of reproduction (especially human reproduction) as subjective hand waving.

It’s your tie of sexual reproduction to modern law that’s hand waving. As is your attempt to set words in stone, such as “conjugal.” In those places where and among those people for whom marriage between same-sex spouses is recognized, “conjugal” isn’t exclusive to male-female relationships. Why are you so opposed to letting others think and live as they please? You certainly can’t demonstrate that they harm you, or anyone else. Why must you insist on policing the very vocabulary they use to define themselves?

So is a definition provable and discrete or is it malleable and dynamic? If it is discrete, then I will offer a proof that way. If it is dynamic and malleable, then I can only offer why it should be that way.

You are terribly confused, and not thinking very clearly. Your definition can be as discrete or as malleable as you like. It’s your definition. But (and you must not have read this part), “if you want me to accept” your definitions you’ll have to do more than assert them - I do not want homosexuals to be second-class citizens, and your casual, off-the-cuff definitions haven’t persuaded me that they should be.

If you want me, or those who think as I do, to accept your conclusions, you’ll need to do more than chant the same inanities over and over and over again. Some evidence would be a fine place to start.

Unfortunately, I have the feeling this thread is going to close soon, so let me just respond to one point:

But let me ask you, do you think it is essential to society that what I've called the core of marriage actually takes place? That a critical mass of people in society fulfills the compound purpose of integration of man and woman and responsible procreation? Or is it something that is entirely irrelevant to the well-being of society?

A marriage contract (legal or religious) is pretty irrelevant for the well-being of society. Families will still exist without that piece of paper or religious "permission". That is irrelevant to the actual union that exists between two people. If you were to abolish all marriage contracts, that doesn't mean that people who've been together for 30 years will suddenly say "well, we're not married, so we might as well just go our separate ways". The marriage between two people, same sex or otherwise, will still exist.

Of course, the marriage contract brings about both legal and religious-based responsiblities for each partner and their family, so it offers additional protections and stability for any couple.

Like I said before, my partner and I have been together 8 years now, we're a family (and nothing anyone says can change that fact), and all our friends consider us "married", even without a piece of paper. What we're lacking are the legal rights and responsibilities from the government, pure and simple.

What you describe as the "core" of marriage, to me is not.

"a critical mass of people in society fulfills the compound purpose of integration of man and woman and responsible procreation"

This will happen no matter what. The core of marriage today is a civil (and sacred) agreement between two people and the rights and responsibilities the couple holds between each other and between them and society (for example but not exclusively for: having and raising children, promoting social and sexual stability, etc.).

This is in opposition to what marriage was just a few short centuries ago: a tool for the consolidation of wealth, power, politics, or an adherence to religious taboos.

As an aside, I also think that the pro marriage equality movement makes many religious conservatives feel shame and jealousy. "Oh no", they say, "those hellbent evil gays and lesbians want marriage more than us God-fearing heteros, we better not let them in because they may do a better job of it than we do!" forgetting of course that equal marriage rights also brings with it equal divorce rights. We're just as good at that as you are.

> "CB said that adoption provides children parentage. That is entirely accurate."

Wow, utterly amazing. No definition in the dictionary for "parentage" would make that phrase make sense.

> "I offered a hasty defense that should have been better written."

You offered an acrid, false, and abysmal defense that is true. You attempted to prop up the fallacy with emphatic epithets and baseless accusations -- much like you are doing now.

There were ways to make it a better written defense, but if you feel you can prove his definition is accurate -- be my guest.

> "Adoption provides children parentage."

Wow, completely amazing. You are re-asserting the falsehood as if it makes it true. Your one amazingly trusting person in your own ability to re-write definitions for everyone around you.

You realize only birth provides parentage (syn: lineage). Only by raising children do you exercise parentage (syn: parenthood). In no way do you provide children parentage with adoption.

Go ahead, prove what you are saying. Your assertions to a failed re-definition are nothing more than amusing.

> "It is beyond question that our society does not require fertility as a prerequisite to marriage."

That could be true in a manner of speaking, so please continue...

> "The infertile have the same rights to marriage the fertile do;"

So far still agreeing (for the most part) with the arguments you keep attaching needlessly acrid commentary too :)

> "their marital rights aren’t a crutch to some disability."

Prove it :)

Okay on to your next point...

> "Is your argument that they are disabled because they are married and infertile?"

Lets work it this way. Loosely put, lets accept that an ability is the capacity to do something. Lets also accept that a disability is more than incapacity, it is the unavailability of some capacity that is normally associated with a class.

The capacity to have children is an ability. It is exclusive to the combination of a mature male and female. When a mature male and female cannot reproduce together, they demonstrate that the capacity to have children is unavailable to them. For whatever reason. Hence they are disabled.

My argument is that they are disabled because they meet every reasonable expectation for the fertile combination, and yet are unable to reproduce. Not because they are married.

In fact, the argument is so obvious that I suspect your inability to grasp it is somehow an act on your part :)

> "Are only married infertile people “disabled,” while singles aren’t?"

What are you really asking here? No really, what is it you don't understand?

As written, it seems that you feel that someone unmarried is infertile? Really? Do you think anyone thinks that way? The pretended incompetence you ascribe in the premise of that question is absurd, and I'm not beneath pointing it out as such.

> "We know that the law does not discriminate between fertile and infertile people, and it’s not because it would be difficult to do - it’s because the law doesn’t care."

You are right.

But it does discriminate between presumptively fertile and non-fertile combinations, doesn't it. Marriage between a man and a woman, as written into the law of all but one state of the union. You and Dale have suggested that there is no requirement for fertility in marriage, and you both are right. But there is a requirement for what the law suggests is reasonable reason to presume fertility.

The reasons to refine that requirement more can be forwarded by yourself. You can prove they are infertile, and that could specify the requirements. But, as you said the law doesn't discriminate against infertility (and as Terrance from Republic of T noted). Why not? If it is not because of the compassion people have towards disability, you tell me what it is about. Present a more rational theory, so we can see just what you believe is really happening.

You, along with others, do a lot of agreeing with me when you are not too involved in trying to strain the imagination to come up with contradictions. Your convulsions are nothing more than stretching the imagination for reasons to dismiss and deny, and its been a fun show to watch.

> "No, of course I don’t believe that homosexuality is a handicap."

Neither do I. So it does not deserve the same exception as the infertile couples.

> "It’s your tie of sexual reproduction to modern law that’s hand waving."

So it is hand waving to reference a wealth of jurisprudence (as has Fitz?) Now your contortions are getting really entertaining. The efforts you go through to pretend to yourself that you still have a point are shameless.

> "As is your attempt to set words in stone, such as 'conjugal.'"

I'm getting to know you a bit better, and it seems that I can translate what you are saying. You are complaining that I'm not allowing you to post-hoc and arbitrarily re-define words for your own selfish reasons in this discussion. You are complaining that words have meanings, and the fact that you cannot play with those meanings when the argument doesn't support your assertions is chaffing. Its restricting. It is too set in stone for you. By the way, take it up with Carpenter who has no problem with the meaning of the word conjugal, nor requires any redefinition for his arguments.

> "Why are you so opposed to letting others think and live as they please?"

Oh please. Are you a teenager now? Did you just get a drivers license and now are complaining that people are too invasive in your life because you get a speeding ticket?

Show me where equal gender representation in marriage is "opposed to letting others think and life as they please."

Then prove it :) (Yes, I'm chuckling as I write this).

> "You are terribly confused, and not thinking very clearly."

I only quote that for entertainment value. Moving on...

> "Your definition can be as discrete or as malleable as you like."

I insist, you decide.

> "your definitions you’ll have to do more than assert them"

And quote the dictionary, and dig into entymology, and anything else that disproves your own ability to assert definitions at will...

On Lawn, I probably won’t get back to this thread until tomorrow, by which time it may have closed. Normally, I hate to lose the last word, but given your style, you’re your own best rebuttal. A few choice rejoinders:

As to “parentage,” you’re relying on the assertion that “parentage” and “lineage” are purely biological terms. This is unsupported by the words themselves; adopted children are adopted into the line of their parents. They can pass their adopted parents’ names, assets, even mannerisms and beliefs on to their own children, natural or adopted. They are in and part of their adopted parents’ line, and thus their lineage. Similarly, by providing parental support, their parents are engaged in “parentage.” The children have that “parentage.” Adoption gives orphans parentage. You don’t have to accept these definitions, but your quirky usage is nonstandard and seems to be good only for disparaging the relationship between adoptive parents and their children. Again, the quibble doesn’t matter, except in that it demonstrates your passion for dictating the terms of others’ families.

As for the “disability” of the infertile, I agree that in the most technical sense, a biologically infertile person is “disabled” in that they lack an ability. I don’t see how this applies to the infertile by choice; that is, those who engage in marriage with no intention of ever reproducing. (Carriers of lethal recessives, for instance, are able to reproduce. If they decide early on to never do so because their children may draw the short straw, they aren’t “disabled.” They may not meet your definition of “infertile,” either. Your argument is so chaotic and freighted with your own peculiar definitions that it’s very difficult to tell what you mean.)

But it does discriminate between presumptively fertile and non-fertile combinations, doesn't it. . . . But there is a requirement for what the law suggests is reasonable reason to presume fertility.

No, it doesn’t and there isn’t. Two 90-year old people are free to marry. A castrated man may marry. A woman who has undergone a hysterectomy may marry. Those who are genetically incapable of reproduction, or who cannot for whatever reason produce gametes, are able to marry. There is absolutely no fertility requirement—no matter how hard you twist the concept, the meaning just won’t follow your lead.

it does not deserve the same exception as the infertile couples.

Have you found any proof that there is such an “exception,” as opposed to an exactly coterminous right? A law, legislative statement, or policy that says that we only let the infertile marry because we’re kind? An opinion poll showing that society doesn’t want the infertile to marry? You’re inventing this “exception.” I see no support for your fantasy.

You are complaining that I'm not allowing you to post-hoc and arbitrarily re-define words for your own selfish reasons in this discussion.

I don’t see any definition of “conjugal” in my dictionary that requires specific genders. It’s specific to spouses, though, and in certain jurisdictions, same-sex couples may be spouses. Additionally, if two same-sex friends were religiously married in a jurisdiction without legal recognition, I would consider their relationship “conjugal,” as would most of their family and friends. The definition is either legal, in which case “conjugal” encompasses same-sex couples in Massachusetts, or cultural, in which case it encompasses whomever I please. You may not accept my definition, but I’m not asking you to. You are enormously attached to your insistence that you arbitrate the ultimate meaning of words. How did you get that job?

What proves a definition?

See above. If it’s a legal definition, the law does. If it’s cultural, there may be a consensus definition, but ultimately every person decides it for themselves.

We get bogged down in this argument over rhetoric because, time and time again, you just can’t demonstrate any actual harm to allowing homosexuals to claim equal state benefits in a conjugal relationship with the love of their choice. I can see why you must insist, over and over again, that there are DEFINITIONS that cannot change. If we are allowed to believe as we wish, then the prejudices that animate you erode gradually, and you have no empirical argument to fall back upon. If there are DEFINITIONS, though, you can demand that MARRIAGE be defended because same-sex marriage just isn’t MARRIAGE. Why not? Because! It’s MARRIAGE, that’s why. Male and female and integration of the sexes mumblemumblemumble...

There are principled arguments against same-sex marriage. Caliban posited a few in the other thread. My guess as to why you can’t move past the rousing rhetoric is rooted in the observation that your clumsy, preaching style is endemic to the other Opine posters as well. I suspect that having an echo chamber is damaging to your style; you aren’t required to ever posit or defend empirical arguments, so you steep yourself in verbose, mutually-reinforcing jargon. It obviously makes you feel good, but whom do you think is actually convinced by it?

Looking back I wish I hadn’t become so invested in this discussion. You obviously aren’t going to get involved in an empirical examination of the issue - no fact will persuade you that equal protection of homosexuals is a worthy cause. It didn’t require so much space on our part to convince whatever lurkers remain that you’re in this to win it, to validate a preexisting bias, rather than to examine the issue. Your stumbletongue rhetoric doesn’t even seem intended to answer the arguments of anyone else, but merely to encourage yourselves. It’s too bound up in your idiosyncratic cant to effectively communicate with the outside world. See, i.e., your bizarre intra-Opine dialogue re: the disability of the infertile.

This appears to have been a futile exchange, except that your participation has made me more suspicious of SSM opponents. Having encountered Opine’s gloating biases and loathing of factual discussion, I fear I’m more inclined to suspect mere prejudice and animus from those who oppose SSM. That’s not fair to the more principled anti-SSM advocates who appear here from time to time, but I’m afraid that your mumbo-jumbo is by far the more common justification for anti-homosexual discrimination in marriage and adoption laws.

> "As to “parentage,” you’re relying on the assertion that “parentage” and “lineage” are purely biological terms. This is unsupported by the words themselves"

As they really mean, or as you once again pretend they mean?

As they really mean (merriam webster)

1 a : descent in a line from a common progenitor b : DERIVATION
2 : a group of individuals tracing descent from a common ancestor; especially : such a group of persons whose common ancestor is regarded as its founder

Or if it is something other than your imagination, just cite your reference...

> "adopted children are adopted into the line of their parents."

That is an interesting phrase, "line of their parents". Come up with it yourself?

> "Adoption gives orphans parentage. You don’t have to accept these definitions, but your quirky usage is nonstandard ... "

And now using words in accordance with the dictionary is non-standard, and using them as Colin imagines them to mean is standard.

Keep 'em coming.

By the way, it seems you only have your assertion to support your belief of what these words mean. No references, no external evidence or verification. Doesn't that discredit what you are saying? You keep saying it should discredit an assertion :)

> "I don’t see how this applies to the infertile by choice; that is, those who engage in marriage with no intention of ever reproducing."

They aren't disabled, so the exception to the disabled doesn't apply to them. You can feel safe on that assertion.

Your underlying question seems to be, don't they provide an exception? No, since people can have children whether they want to or not. And they can change their minds. There is no way the state can determine, based on what people feel at the time they get married, whether they will or won't decide to have children. Or whether they will have children in any case.

In short, they aren't exceptions to the rule because they are fertile, and they are being responsible for children they might have in spite of their current plans. Thats the very reason marriage is so important.

> "Carriers of lethal recessives, for instance, are able to reproduce."

And their children will need their parents committed even more than other children. The need for marriage is even greater in those circumstances. Or, if you feel that precludes them from having a child, they are in the disabled category again, no?

> "Two 90-year old people are free to marry."

In some states they are the only heterosexual allowed civil unions and domestic partnerships too.

But then again, the elderly are not a class of infertile people. What age is infertility? For women there might be an age, but not for men. And infirmity from age produces many disabilities that we still accommodate for. I for one do not care of the elderly are relegated to civil unions. From what I understand they would prefer them anyway. But that is just my view. I still respect that infirmity from age is treated like any other disability.

> "Have you found any proof that there is such an “exception,” as opposed to an exactly coterminous right?"

Those aren't opposed ideals. I realize there are differences between the two, but for the purposes of my writings those are still two ways of expressing the same concept. The disabled are given exception because they have a coterminous right to certain aspects of their lives. Marriage, employment, etc...

Actually in the thread you drug this conversation from, I provided two historic examples. One where people rarely divorced except for infertility. The other of a society that required divorce after ten years if they didn't have a child. Those are historic examples, and I'm glad we do not place those same restrictions today because they are unfair to the disabled.

Do you have another explanation you feel is more plausible? I asked you that before. I'm willing to entertain it.

> "I don’t see any definition of “conjugal” in my dictionary that requires specific genders."

I'll give you that. But that is just bending what people have always understood conjugal to mean (and people like Carpenter still use) because of a loop-hole. The change the definition loop-hole is, btw, a logical fallacy.

> "There are principled arguments against same-sex marriage. Caliban posited a few in the other thread."

Caliban has posted a view of how the value in marriage is altered, and that is undeniable. I agree with his comments, however he does not seem to feel those are arguments against neutering marriage. Just understanding the reality of the change taking place.

> "Looking back I wish I hadn’t become so invested in this discussion. You obviously aren’t going to get involved in an empirical examination of the issue"

They always try to blame me for their own failure. Such is life.

But as to this accusation, I'm so involved in the empirical examination of this issue, I devoted a thread over at Opine to it. So we won't have to worry about the comment expiration.

Only, it is to continue to document the truth against your constant and vain attempts to slander instead of reply with reasonable arguments founded in anything other than your own imagination.

Me: "Read the opinions of Justice Marshall in both Goodridge and the related advisory. She notes that equal access exists for homosexual individuals but then she proceeds, as you would, from a redefinition of the thing that the law recognized and preferred. [...] Even today there has been no amendment of the marriage statute that she read to get to her predrawn conclusion." [LINK]

Me: "I realize that the SSM argument is about the supposed redefinition of marriage -- and, yes, as you and others claim, just the "civil marriage" variety -- but that's a pretty huge problem for your side. If the state authority can define marriage, then, it can make of it whatever it wants." [LINK]

Colin: " don’t make any bones about it, because like the Goodwin court I don’t think anti-homosexual discrimination is justifiable even under rational basis review."

The law recognizes marriage. It does not define it, redefine it, nor create it.

As I said in another thread, I urge you to reread Justice Marshall's opinions. There are members of the group blog here at The Volokh Conspiracy who have said they disagree with the opinion on substantive grounds. Dale Carpetner has said the reasoning is convoluted.

But, as I asked, you answered: this is the best example of a rights-based claim made to enact SSM.

Do you still stand by the entirety of the Marshall opinions? If not, which parts do you disagree with and which parts do you agree with? Just the highlights, as you must be eager to discuss the gist of the legalism involved.

Colin: "I think I understand you now. We begin by creating a status: not the idea of marriage, which the government does not and cannot dictate, but the recognition of that status in law."

Me: "The Law [...] can only affirm the social institution and either tolerate it (all diverse arrangements are treated with equal indifference), protect it (safeguard against governmental intrusions), or prefer it (encourage it as an ideal arrangement)."

Colin: "I am, however, an attorney. I am concerned with the law. With fact. With empiricism."

Me: "my use of the concept of equal access has been used by courts in marriage cases around the country. It is not my personal redefinition. It is not a redefinition. You have emphasized that the purpose of marriage is established by its requirements (and lack of requirements). There is no requirement based on sexual orientation. No such rule bars the homosexual individual from marriage. " [LINK]

------------

Colin, we disagree, obviously, on a number of basic points.

You slip around quite a bit. You say that the law is all that concerns you. And you say that the law is whatever the polity wishes it to be. But you also agree with the reasoning of the Goodridge opinon which, as you noted, used rational basis review and yet define the law not as the polity wished it to be. The contradictions and twists in your comments have accumulated here for all to read.

But you have persisted with a modicum of dignity and civility. That is much more than most SSM advocates can bring themselves to do when met with persistent and civil disagreement. And, yes, your reasoning does follow the common pattern of SSM argumentation, quite faithfully, but, no, that does not make your view of the legal institution factually correct.

The law does not create reality. It reflects it, hence the metaphor of the shadow.

The legal incidents, the benefits, of marital status do not create marriage. The social institution is not merely a religious expression -- it has existed, and still exists, under expressly athiestic regimes. It exists under pluralistic regimes and under secular regimes. The social institution is not something concocted by the bench in Massachusetts, USA.

Colin: "Insofar as you’re discussing how to create an institution out of whole cloth and determine its eligibility requirements at the time of inception, that’s an interesting question. I don’t think it would be hard, because the same process would apply - it would just happen prior to inception, rather than post hoc. But that’s not relevant to the real-world debate."
[LINK]

Me: "It is highly relevant since you and other SSM proponents have declared the decisive importance of requirements. Is the purpose of the status defined by its requirements or not? Or are the requirements determined by the purpose of the status?"

Colin: "I think your questions are inane ... "

Colin: "I am not concerned with "the social institution," but the legal practicalities. [...] There is no existential binary "MARRIED" bit that flips once they meet magical marital requirements."

----

And as you would cut the legal practicalities off from the territory occupied by the social institution that exists in the world, and certainly in the world you can see, touch, and percieve here in the USA, then, you also cut yourself off from the societal needs that the core of marriage serves.

That means you are understandably upset when your small vessel is blown by the winds farther out to sea.

RichK, thanks for your response. It is a good comment and I think we can agree on several points.

I think, however, you did not directly respond to the questin I had asked. I see that you have confirmed that for you there is no need to preference integration of the sexes combined with responsible procreation, because that is going to happen anyway.

I added the notion of critical mass because it has been observed that when a society fails to integrate the sexes sufficiently (see some polygamous cultures with a "surplus" of single young men) or where responsible procreation is not bound closely with sex integration (see the stark example of China and the growing imbalance in the male-female births ratio), social cohesions deteroriates.

This is not a "the sky is falling" comment. It is an observation that nonmarital trends, and trends that portend less sex integration, are our early warning system.

Even, say in Italy, where marriage rates are higher than, say, in Sweden or Denmark, when a society cuts off the connection between 1) bonding men and women together deeply and 2) the norm of procreating responsibly, society tends not to regenerate itself.

So it must be acknowledge, I think, that the purpose of marriage, as I have described it, is a requirement for society -- even if you would cut it off from marriage recognition and not require it of each and every married couple. Society needs more than what is offered by the idea of SSM. Much, much, much more.

Now, could the one-sexed arrangement be established more securely in the Law of the land -- and coexist with marital status? Yes, for sure. Designated beneficiaries would not even touch marriage law, except to make marriageable combinations ineligible. Streamlinging designated beneficiaries, which has long existed in our legal system, would make the provision both more accessible and more portable -- not just around the USA but internationally.

That is the better route to the protective role you seek from the government. This tussle over marriage does the homosexual cause a huge disservice. And unnecessarily puts forth a confusion: marriage recognition is not established to exclude homosexual persons; and eligibilty is based on relationship types being in accord with the core of marriage; marriage is about preference, for sure, but it is not about disparaging nonmarital alternatives.

I will make another point that we have not discussed but which I will post about over The Opine Editorials. The SSM campaign has been very disruptive to the long hard work that has been going on for decades to protect and strengthen marriage recognition and the social institution. SSM has diverted energy from a much more important task. Eventually the public will tire of the debate and throw up their arms -- and that will NOT be a victory for your side because self-government will have been undermined severely.

As I tried to encourage Colin, start with a blank page. Figure out the purpose of the status you seek. If you truly believe that requirements define the status, and its purpose, then this should be straightforward even if it is hard work. That is what any reformer ought to feel responsibile for when pushing his case onto the top of the national agenda.

The SSM campaign has failed to do that duty. So the cultural resistance you've met is very strong. Expecting to just tire people out is a piss poor approach to setting social policy. That is true for two different reasons. 1) It warps self-government out of recognition. 2) It does not win the social approval, and acceptance, that is beneath the very superficial surface of legalistic claims and counterclaims.

Many people who take the view I do feel a powerful responsiblity to future generations. So we are likely to be generous in terms of seeking to be understood. I know that both sides in this discussion tend to feel like they are banging their heads against a brick wall. That's part of the problem with SSM campaign's approach. Sure, conflict is part of the tension of making decisions about good social policy, but if you are concerned about more than RIGHT NOW and also feel a powerful responsibility toward the future generations, you might also seek a different way.

I said it before: SSM looks like a hammer in search of a nail. Start with your purpose then build from there. Emotionalism doesn't make for a good basis for social policy. Do the hardwork before you make the demands that just do not fit the nature of marriage. That hardwork, I believe, will produce a different goal -- establishment of protective provisions that are more attuned to the sexual ecology of the man-man relationship type, and the woman-woman relaitonship type. As you said, you exist as families, so look farther down the road.

Because, guess what, that's what those of us who have been slugging it out for years, and years, have been doing in aid of the social institution -- long before SSM was vaulted to top of mind politically.

Colin 3.29.2007 2:20pm
I'm going to go ahead and say it, although I'm sure you've heard it before: Similarly, before Loving, no rule barred black individuals from marrying. They just couldn't marry the partner of their choice.

Here again is another example of SSM sophistry: "They just couldn't marry the partner of their choice."

Black individuals just couldn't marry a white person if that was their choice. It was far less general than you make it seem.

Marriage has never been and never will be an ideal to which most gays have ever aspired. Let's be honest. The use of marriage is part of their quest for social sanction of their behavior. The very few gays who may want to marry will have the effect of legitimizing the sexual choices and practices of the many who do not want to and will not marry. It's supposed to make homosexuality OK, to give it respectability, make it moral. It's really more about therapy than attaining the social ideal of a faithful and monogamous relationship, because this has never been the ideal among gays. The true ideal among gays is unbridled male sexual expression, and this is far more easily found with other males than it is with females, because a male really knows how men like their sex.

Not legally recognizing gay marriage, then, will have the effect of refusing to legitimize the promiscuity and hedonism so prevalent in the "gay philosophy", and sends the signal that responsible sexuality, procreation and family is still an enduring ideal to which men and women might aspire. Society creates that way a special place for mothers and fathers.

Allowing gay marriage really shifts the moral foundation of the law and other institutions onto some mysterious thing that is not part of the Judeo-Christian tradition, one of the pillars of Western Civilization. So the question is: Why should Christians, who are the overwhelming majority in America yield their value system to this mystery one that is held by only a small minority? In a supposedly "morally relative universe", why should the minority view trump the majority one? The majority says, for whatever reasons it may have, that homosexuality is socially undesirable, that is, wrong. Who's to say they're wrong about this?

Unless anyone saying that occupies the really moral high ground.... sort of like God.